FIERO FERNANDES,MUMBAI vs. JURISDICTION WARD 42(2)(2), MUMBAI

(िनधा�रण वष� / Assessment Year :2015-2016) Fiero Fernandes Vs. ITO, Ward-42(2)(2), 1202 Lourdes Heritage, Mumbai Opposite Our Lady of Lourdes Church, Orlem Malad West Mumbai �थायी लेखा सं./PAN No. : AASPF 3097 Q (अपीलाथ� /Appellant) (��यथ� / Respondent) .. िनधा�रती की ओर से /Assessee by : Ms. Chaitee Londhe, AR राज�व क� ओर से /Revenue by : Shri Pravin Salunkhe, Sr.DR सुनवाई क� तारीख / Date of Hearing : 12/02/2025 घोषणा क� तारीख/Date of Pronouncement : 14/02/2025 आदेश / O R D E R

Per Sandeep Singh Karhail, JM :

(b) The notice under section 148 of the Act could have been issued only before the limitation expired according to the provisions of section 149 as they stood prior to 1st April, 2021 and therefore the notice under section 148 issued to the Appellant was bad in law. Consequently, the assessment was bad in law and deserves to be quashed.

2. Without prejudice to the above ground, the learned Commissioner of Income Tax (Appeals) erred in facts and in law in confirming the addition of Rs. 9,88,000/- made by the learned Assessing Officer to the returned income of the Appellant.

Fiero Fernandes 7. Without prejudice to the above ground and strictly in alternative, the learned Commissioner of Income Tax(Appeals) erred in not appreciating that the difference between the stamp duty value and the purchase consideration is less than 10% of the purchase consideration and as upheld by various judicial for a, the amendment to section 56(2)(x) of the Act w.e.f. 01.04.2019 prescribing a price band of 10% being curative and beneficial in nature, would apply retrospectively to section 56(2)(vii)(b) of the Act as well.

prior to or at the time of hearing.

3. We have considered the submissions of both sides and perused the material available on record. In the present case, at the outset, it is evident that the learned CIT(A) has passed the order ex-parte due to the non-appearance of/on behalf of the assessee. We further find that the learned CIT(A) merely on the basis of non-compliance with notices, dismissed the appeal filed by the assessee without adjudicating the grounds raised by the assessee on merits, as required under section 250(6) of the Act. We find that in CIT v/s Premkumar Arjundas Luthra (HUF), reported in [2016] 69 taxmann.com 407 (Bombay), the Hon’ble Jurisdictional High Court held that Commissioner (Appeals) cannot dismiss the appeal on account of non-prosecution of appeal by the assessee. Consequently, we deem it fit and proper to set aside the impugned order and restore the matter to the file of the learned CIT(A) for de novo adjudication of the appeal on merits. We further direct that no order shall be passed without affording reasonable opportunity of hearing to the parties. The assessee is directed to appear before the learned CIT(A) on all the hearing dates as may be fixed without any default. As Fiero Fernandes the matter is being restored to the file of the learned CIT(A) for adjudication on merits, the other grievances raised by the assessee in the present appeal do not call for adjudication at this stage. Accordingly, grounds raised by the assessee are allowed for statistical purposes.