DHARMENDRA SHANTILAL BAVISI,GHATKOPAR vs. ITO CIRCLE 27(1)(4), MUMBAI

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ITA 1001/MUM/2019Status: DisposedITAT Mumbai10 February 2020AY 2009-103 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal held that the CIT(A) passed an ex parte order without providing the assessee with a proper opportunity of hearing. Therefore, the ex parte order was set aside.

What were the facts?

The assessee, engaged in textile and transport business, filed a return of income offering business income under Section 44AF. The Assessing Officer added the entire cash deposited in the assessee's bank account as income, disregarding the presumptive taxation scheme.

What were the issues?

Whether the CIT(A) erred by passing an ex parte order without affording the assessee a reasonable opportunity of hearing. The validity of the addition made by the AO without considering the presumptive income offered by the assessee.

Which sections of the Income-tax Act were involved?

Section 44AF,Section 143(3),Section 147,Section 250(6)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, “SMC”, BENCH

Before: SHRI R.C.SHARMA, AM & SHRI VIKAS AWASTHY, JM

For Appellant: Shri Aditya Ramchandra (AR)
For Respondent: Shri Amit Pratap Singh (DR)
Hearing: 10/02/2020Pronounced: 10/02/2020

Assessee by Shri Aditya Ramchandra (AR) Revenue by Shri Amit Pratap Singh (DR) Date of Hearing 10/02/2020 Date of Pronouncement 10/02/2020 आदेश / O R D E R PER: R.C. SHARMA, A.M. This is the appeal filed by the assessee against the ex parte order of the ld. CIT(A)-24, Mumbai dated 29/11/2018 for the A.Y. 2009-10 in the matter of order passed U/s 143(3) r.w.s. 147 of the Income Tax Act, 1961 (in short, the Act).

2.

In this appeal, the assessee is basically aggrieved for the ex parte order passed by the ld. CIT(A) without giving due opportunity of hearing to the assessee.

3.

Rival contentions have been heard and record perused. Facts in brief are that the assessee is in business of retail trade of textile cloths

Dharmendra Shantilal Bavisi Vs ITO and sarees besides transport business and earning interest income from bank fixed deposits. The assessee is deriving business income and income from other sources. In the return of income so filed, the assessee did not incorporate income from retail trade of textile clothes. The assessee then computed business income by applying Section 44AF of the Act and net profit was computed at 5.24% of total sales of Rs. 16,02,937/-.

Thereafter the A.O. got information that the assessee has deposited cash in his savings bank account maintained with Oriental Bank of Commerce.

In the reassessment order so framed, the A.O. added entire amount of cash deposited in the assessee’s income without accepting assessee’s contention regarding income having offered U/s 44AF of the Act.

4.

Against the order of the A.O., the assessee preferred appeal before the ld. CIT(A). The ld AR has drawn our attention to the written submission filed before the ld. CIT(A) alongwith judicial pronouncements for taking into account net profit income of assessee having offered income under presumative tax scheme. However, the ld. CIT(A) has passed ex parte order without considering the details filed by the assessee and the appeal was dismissed on the ground of non-prosecution.

5.

In terms of provisions of sub-section (6) of Section 250 of the Act, the order of the Commissioner (Appeals) disposing of the appeal should be in writing and shall state the points for determination, the decision thereon and the reason for the decision. In the instant case, without

Dharmendra Shantilal Bavisi Vs ITO giving opportunity and without considering the assessee’s contention, the ld. CIT(A) has dismissed the assessee’s appeal for non-prosecution.

Therefore, in the substantial interest of justice, we set aside the ex parte order of the ld. CIT(A) and restore the matter back to the file of ld. CIT(A) for deciding the matter afresh on merit after providing due and reasonable opportunity of hearing to the assessee.

6.

In the result, appeal of the assessee is allowed in part for statistical purposes only.

Order pronounced in the open court on 10th February, 2020.

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