DESH BHUSHAN CO OP HOUSING SOCIETY LTD ,MUMBAI vs. ITO WARD 19(1)(1), MUMBAI

आदेश / ORDER

2 Desh Bhushan Co Operative Housing Society Ltd.

PER SANDEEP GOSAIN, JM: The present appeal has been filed by the assessee challenging the impugned order dated 25.09.2025, passed u/s 250 of the Income Tax Act, 1961 (‘the Act’), by the Office of The Commissioner Of Income Tax, Appeal [ CIT (A)], Mumbai, for the Assessment Years 2016-2017. 2. Ground number one by the assessee relates to challenging the order of CIT[A] in considering assessment order under section 147, 144 of the act considering the same as Ex- parte. 3. We have heard the counsels from both the parties, perused the materials placed on record, judgments cited before me and also orders passed by the revenue authorities. From the records, it is noticed that in the present case AO had made the addition of the amount equal to the value, determined by Stamp Duty Authorities of flats allotted to three tenants by the develops as alternate accommodation to them in the hands of assessee society by considering the society as owner of plot, 4. The said order of the assessment was challenged before Ld. CIT [A], but Ld. CIT[A] erroneously

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assumed that the order passed by the AO was exparte. Thus, based on such assumption, CIT(A) set aside the matter back to the file of AO for de novo assessment. Whereas the facts of the matter are that the order passed by the AO was not an ex parte order. Therefore, the assumption of Ld. CIT[A] is factually incorrect and thus Ld. CIT[A]could not invoked the provision of section 251 (1) of the Income Tax Act as can be seen from plain reading of the said provision that Ld. CIT[A] can set aside the order for making a fresh assessment, only if the order passed by AO is exparte under section 144 of the Income Tax Act, which is not the situation in the present case. Therefore, reliance in this regard on the decision in the case of Smt. Ritu Dhingra Vs DCIT(CC)- 2 Ludhiana in ITA/645/Chd/2025 and Jyoti Prakash Deshmush Vs ITO, Ward-2(2), Kalyan in ITA/3295/Mum/2024. 5. Therefore, considering the totality of the facts and circumstances and the legal preposition as discussed by me above, We set aside the order of CIT[A] and restore the matter back to the CIT[A]/NFAC for deciding the appeal filed by the assessee on merits, needless to mention after providing opportunity of hearing afresh to the assessee.

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Order pronounced in the open court on 08.07.2026

Sd/- Sd/- (BIJAYANANDA PRUSETH) (SANDEEP GOSAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER

Mumbai, Dated 08/07/2026 Sharath PS.

आदेश की प्रतितिति अग्रेतिि/Copy of the Order forwarded to : अपीलार्थी / The Assessee 1. प्रत्यर्थी / The Respondent. 2. संबंधित आयकर आयुक्त / The CIT(A) 3. 4. आयकर आयुक्त(अपील) / Concerned CIT धिभागीय प्रधतधिधि, आयकर अपीलीय अधिकरण,मुम्बई/ DR, ITAT, Mumbai 5. 6. गार्ड फाईल / Guard file.

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आदेशानुसार/BY ORDER, सत्याधपत प्रधत //True Copy//

उि/सहायक िंजीकार ( Asst. Registrar) आयकर अिीिीय अतिकरण, मुम्बई / ITAT, Mumbai