LATE SHRI MOTILAL HASTIMALJI BOTHRA THROUGH HIS L/H MRS BHANWARI DEVI MOTILAL BOTHRA,MUMBAI vs. ITO, RANGE - 19(2)(3), MUMBAI

O R D E R

PER AMARJIT SINGH, JM:

A.Y.2010-11 “1. That on the facts and in the circumstances of the case, the Ld. CIT(A) grossly erred in rejecting the appeal without considering the merit of case.

2. That on the facts and in the circumstances of the case, the Ld. CIT(A) grossly erred in the order passed against the deceased person is null and void ab-initio and thus the impugned order is not sustainable.

3. That on the facts and in the circumstances of the case, the Ld. CIT(A) grossly erred in upholding the validity of notice u/s 147/148 issued by Ld. AO.

4. That on the facts and in the circumstances of the case, the Ld. CIT(A) grossly erred in sustaining addition of Rs.1,12,06,190/- in non genuine purchase.

5. That the petitioner may kindly be permitted to raise any additional or alternative grounds at or before the time of hearing. The petitioner prays for justice & relief. 6.

3. We have heard the argument advanced by the Ld. Representative of the Department and has gone through the case carefully. In fact, the Ld. Representative of the assessee did not argue the case on merits but argued on this point that the CIT(A) has decided the matter of controversy in absence of the assessee and without giving an opportunity of being heard to the assessee in accordance with law, therefore, the finding of the CIT(A) is not justifiable, hence, is liable to be set aside in the interest of justice. However, on the other hand, the Ld. Representative of the Department has refuted the said contention. On appraisal of the order of the CIT(A) dated 12.02.2019 passed by the CIT(A) we find that the CIT(A) has decided the matter of controversy in absence of the assessee/Representative of the assessee without giving an opportunity of being heard to the assessee in the accordance with law. A proper and reasonable opportunity is required to be A.Y.2010-11 given to the assessee before the deciding the matter of controversy in accordance with law.

4. For this proposition we place reliance upon the following case laws. (1) CIT Vs. Premkumar Arjundas Luthra (HUF) (2017) 154 DTR (Bom) 302 (2) CIT Vs. S Chenniappa Mudaliar (1969) 74 ITR 1 (SC)

5. Accordingly in the interest of justice, we remit the issue raised in the appeal to the file of the Ld. CIT(A). Ld. CIT(A) is directed to consider the issue afresh and pass an order on the merits of the case after giving after giving an proper opportunity of being heard to the assessee in accordance with law. Therefore, in the said circumstances, we are of the view that the order of the CIT(A) is not liable to be sustainable in the eyes of law, therefore, we set aside the finding of the CIT(A) on all the issues and restore the matter before the CIT(A) to decide the matter afresh by giving an opportunity of being heard to the assessee in accordance with law.

6. In the result, the appeal filed by the assessee is hereby allowed for statistical purposes. Order pronounced in the open court on 12/11/2020 Sd/- Sd/- (PRAMOD KUMAR) (AMARJIT SINGH) उपधध्यक्ष / VICE PRESIDENT न्यधनिक सदस्य/JUDICIAL MEMBER मुंबई Mumbai; ददनांक Dated : 12/11/2020 Vijay Pal Singh (Sr. PS)