MANISH SUBEDAR PANDEY ,KANDAVLI (E) MUM vs. WARD 33 (2) (3) , MUMBAI , BANDRA EAST

The brief facts of the case are that, the assessee filed return of income on 21.07.2017 declaring total income of Rs. 2,60,640/-. The case was selected for scrutiny under CASS and necessary statutory notices were issued and served upon the assessee on 25.10.19 and 11.12.19 calling for various details. In response, the assessee filed the necessary documents. Ld. AO observed that the documents filed by the assessee has not been authenticated properly and therefore in absence of the genuinity of the documents submitted by the assessee, the AO proceeded to make addition of Rs. 1,86,01,000/- u/s 69A of the Act. Penalty proceedings were also initiated separately.

Aggrieved by the order of AO, assessee preferred the appeal before Ld. CIT(A) and Ld. CIT(A) has dismissed the appeal of the assessee ex-parte and confirmed the addition made by AO. Hence, the assessee is in appeal before us and has raised the following grounds:-

We have heard Ld. AR and Ld. DR. It was argued on behalf of the appellant/assessee that the AO has passed the assessment order without giving proper opportunity of hearing to the assessee and Ld. CIT(A) proceeded ex parte and decided the appeal on merit without giving effective opportunity of hearing to the assessee. Therefore, the impugned order suffers from illegality and liable to be set aside. The Ld. DR on the other hand supporting the judgment of the Ld. CIT(A) stating that there is no merit in the appeal and same is liable to be dismissed.

We have carefully examined the record and considered the rival submission of both the parties. It is evident from para 4 of the order of Ld. CIT(A) that “In course of appeal proceeding despite availing multiple opportunity of hearing including dated 23.11.23, 06.12.23, the appellant miserably failed to comply the said notices. However, the present appeal is disposed of on the basis of materials on records.” Ld. Page | 3 Manish Subedar Pandey CIT(A) further observed that „Since no written submission against the grounds, as enumerated in grounds of appeal, is filed by the appellant despite availing multiple opportunity of hearing dated 22.11.23, 06.12.23, 14.12.23 the appeal is accordingly disposed on merit on the material available on record.” Further the Ld. CIT(A) has observed and given its conclusion as under:-

We have also considered Section 250 sub section 2(a) of "the Act" which provides as under:

It is evident from the provision that the hearing to be given is not a formality but an effective hearing is sine qua non for the purpose of upholding the principal of natural justice. It is thus evident from the contents of the impugned order extracted above that no effective opportunity of hearing has been given to the assessee which is bad in law and the passing of impugned order resulting miscarriage of justice and end of justice requires that assessee be given one more opportunity by the revenue to represent its case.

For these reasons, we are of the considered opinion that the matter needs to be restored to the file of the Ld. CIT (A) with a direction to give effective opportunity of hearing to the assessee who shall present its case before him within 90 days. The impugned order is accordingly set aside and appeal filed by the assessee is allowed in above terms.

In the result, appeal filed by the assessee is allowed for statistical purposes.