VISHWANATH KADIA SHETTY,MUMBAI vs. ACIT, CIRCLE 22(3), MUMBAI

O R D E R Per Amarjit Singh (AM): These two appeals filed by the assessee are directed against the common order of NFAC, Delhi, dated 26.12.2022. Since common issue on identical facts are involved in these two appeals filed by the assessee, therefore, these appeals are adjudicated together by taking as lead case and its finding will be applied to ITA No. 122/Mum/2023 mutatis mutandis. ITA No.121/Mum/2023 “1. On the facts and circumstances of the Appellant's case and in law the Ld. Comm of Income Tax (Appeals) erred in passing the Order u/s 250 of the Income Tax Act, 1961 without affording reasonable opportunity of being heard.

on or before the hearing.”

2. The fact in brief is that return of income declaring total income of Rs.14,84,140/- was filed on 26.11.2011. The case of the assessee was reopened by issuing of notice u/s 148 of the Act on 15.07.2015. In this case the assessee had transferred immovable property for a consideration of Rs. 12 lac on 18.01.2012. On verification the A.O found that the stamp duty valuation authorities has valued the impugned property at Rs.1,00,89,500/- for the purpose of computation of levy of stamp duty on the transaction. The AO further stated that partner of the assessee Shri Hari Mittar Yadav and the assessee together had contributed Rs. 24 lac to purchase the said property in the year 2003. Accordingly, the A.O has computed the assesse’s share of capital gain in accordance with Sec. 50C of the Act to the amount of Rs.30,10,193/- and added to the total income of the assessee.

3. Aggrieved, the assessee filed the appeal before the ld. CIT(A). The ld. CIT(A) has dismissed the appeal on the ground that assessee has not made any compliance during the course of appellate proceedings.

P a g e | 3 & 122/Mum/2023 Vishwanath Kadia Shetty vs. ACIT, Circle 22(3) 4. During the course of appellate proceedings before us the ld. Counsel contended that during the course of appellate proceedings before the ld. CIT(A) no notice of hearing was intimated to the assessee on the email (ca.sunil_shetty@yahoo.com) provided by the assessee. Therefore, he submitted that ld. CIT(A) has not given any opportunity of being heard to the assessee before deciding the appeal. On the other hand, the ld. D.R supported the order of lower authorities.

5. Heard both the sides and perused the material on record. Sec.250(6) of the I.T. Act contemplates that ld. CIT(A) would determine point in dispute and therefore, record reasons on such point in support of his conclusion. However the ld. CIT(A) has not adjudicated the appeal of the assessee on merit. The ld. CIT(A) is required to adjudicate the appeal on merit after taking into consideration the material available in the assessment record. In the case of the assessee even the notice of hearing was not intimated to the assessee on the email id specifically provided by the assessee in the form no. 35 filed with the ld. CIT(A). In view of the above facts and circumstances we are of the view that assesse must be given opportunity of hearing at the level of ld. CIT(A). Therefore, we remind this matter back to the file of the ld. CIT(A) for adjudicating a fresh on merit, after affording due opportunity to the assesse.

P a g e | 4 & 122/Mum/2023 Vishwanath Kadia Shetty vs. ACIT, Circle 22(3) 8. In the result, both appeals of the assessee are allowed for statistical purposes. Order pronounced in the open court on 17.03.2023 Sd/- Sd/- (Aby T Varkey) (Amarjit Singh) Judicial Member Accountant Member Place: Mumbai Date 17.03.2023 Rohit: PS आदेश की प्रतितिति अग्रेतिि/Copy of the Order forwarded to : 1. अपीलाथी / The Appellant 2. प्रत्यथी / The Respondent.