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Income Tax Appellate Tribunal, MUMBAI BENCH “SMC”, MUMBAI
Before: SHRI JOGINDER SINGH & SHRI RAJESH KUMAR
Per Rajesh Kumar, Accountant Member:
The present appeal has been preferred by the assessee against the order dated 19.12.2017 of the Commissioner of Income Tax (Appeals) [hereinafter referred to as the CIT(A)] relevant to assessment year 2010-11.
The assessee has challenged the order of Ld. CIT(A) on two issues namely the wrongful confirmation of reopening of assessment under section 147 of the Act and second against taxing Rs.29,46,899/- as income from other source under section 68 of the Act on the ground that profit from F&O transaction by client code modification.
2 Pradip R. Javeri HUF 3. The Ld. A.R., at the outset, submitted before the Bench that assessee was not given a reasonable opportunity to present his case before the AO as the reply filed by the assessee was not considered and therefore this has resulted in miscarriage of principles of natural justice. The Ld. A.R. prayed before the Bench that the issue be restored to the file of the AO so that the facts of the case with all the documentary evidences could be furnished before the AO and taken into account while framing denovo assessment.
The Ld. D.R., on the other hand, opposed the arguments of the Ld. A.R by submitting that the assessee was granted sufficient opportunity by both the authorities.
Having heard both the parties and perusing the material on record, we observe that the reply which was admitted filed by the assessee after the date of the assessment order was not considered by the AO as it was not possible to consider the same as it was filed after the date of assessment order. The Ld. A.R. vehemently submitted before us that there is no mistake on the part of the assessee as has noted by the AO and in fact there was a mistake in punching at the end of the stock broker for the assessee should not be penalized. Under these circumstances, we are of the view that the assessee should be given one more opportunity to present his case. Accordingly, we restore the issue to the file of the AO with the direction to decide the same denovo on the facts and as per law after affording a reasonable opportunity to the assessee.
Order pronounced in the open court on 30.08.2018.