SHRI ARJUN R DEWASI,MUMBAI vs. ITO 28(1)(2), MUMBAI

O R D E R

PER SHAMIM YAHYA, AM:

read as under.: - “1. On the facts and circumstances of the case as well as in law, the Ld. CIT(A) has erred in passing ex-parte order without granting sufficient opportunity of being heard to the appellant.

2. On the facts and circumstances of the case as well as in law, Ld. Assessing Officer has erred in reopening the assessment u/s 147 of the Income Tax Act, 1961, without considering the facts and circumstances of the case.

3. On the facts and circumstances of the case as well as in law, the Ld. CIT(A) has erred in making an addition of A.Y.2009-10 Rs.18,99,899/- on account of alleged bogus purchases, without considering the facts and circumstances of the case.

4. On the facts and circumstances of the case as well as in law, the Ld. Assessing Officer has erred in treating Rs.2,00,000/- as profit of business, without considering the facts and circumstances of the case.

5. The appellant craves leave to add, amend, alter or delete the said ground of appeal.”

3. At the outset, Ld. Counsel of the assessee has contended that the addition confirmed on account of bogus purchases has been done by the AO exparte in the impugned order passed u/s 144 of the I. T. Act, 1961. Ld. Counsel contended that the order by the Ld. CIT(A) is also an exparte order and in the said order Ld CIT(A) basically dismissed the appeal for non-prosecution. Ld. Counsel of the assessee prayed that an opportunity may be granted to the assessee to properly canvass the appeal.

4. Upon hearing both the counsel and perusing the record. I find that it is incumbent upon Ld. CIT(A) to pass an order on the merits. I note that it is not proper on the part of the Ld. CIT(A) to dismiss the appeal for non-prosecution as Act mandates ld. CIT(A) to pass an order on the merits of the appeal before him and not dismiss the appeal for non-prosecution. Be as it may I remit the issue to the file of the AO to consider the issue afresh. Ld. Counsel of the assessee has undertaken to suo moto appear before the AO within a period of two months from the date of this order. A.Y.2009-10 In the result this appeal by the assessee stands allowed for statistical purposes.