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Income Tax Appellate Tribunal, “SMC” BENCH, MUMBAI
Before: SRI MAHAVIR SINGH
This appeal by the assessee is arising out of the order of Commissioner of Income Tax (Appeals)-28, Mumbai [in short CIT(A)], in appeal No. CIT(A)-28/IT-469/ITO-17(3)(4)/2014-15 dated 27.03.2017. The Assessment was framed by the Income Tax Officer, Mumbai Ward 13(3)(4) Mumbai (in short ‘ITO') for the A.Y. 2011-12 vide order dated 27.12.2013 under section 143(3) of the Income Tax Act, 1961 (hereinafter ‘the Act’).
At the outset, it is noticed that this appeal is barred by time limitation of 217 days and assessee has filed condonation petition along with affidavit. It is seen that the CIT(A) order dated 27.12.2017 which is the date mentioned by assessee in its appeal memo form No. 36. It is not possible that on the very same date the appeal order was served on the assessee. The assessee has filed affidavit stating the reasons as under: - : - “2. That, my Chartered Accountant thereby checked the demand status online from my Income Tax Login ID and at that point of time, it was realized that Commissioner (Apepals) -28 has passed an order for AY 2011-12 against me.
3. That, copy of the said order was thereby extracted online on 04.12.2017.
4. That, prior to 04.12.2017 neither I was not aware of any order passed by CIT(A) nor I had received any notice of hearing.
That, after perusing the appellate order, it was suggested to me to file the appeal before the Hon’ble Appellate Tribunal against the order passed by the Ld. CIT(A).
6. That, Draft of appeal to be filed before the Hon’ble Appellate Tribunal was also given to me.
That I immediately signed the appeal memo and thus the appeal came to be filed before the Hon’ble Appellate Tribunal on 29.12.2017. However, by that time the appeal was barred by limitation period of 277 days.
That, the delay for filing the present appeal is not because of any malafide intention. Hence, your Honors may be pleased to condone the delay in filing the present appeal and the appeal may be decided on merits of the case.”
In view of the above facts it seems that the cause is reasonable and the delay is not attributable to assessee. Hence, I condoned the delay and admit the appeal.
The first issue in this appeal of assessee is against the order of CIT(A) and the order of the AO not providing opportunity of being heard and hence, denied natural justice. For this assessee has raised the following ground No. 1:-
1. The Ld. CIT(A) erred in confirming the action of Ld. A.O. by confirming order without providing proper opportunity of hearing to the appellant and thereby, violating the principles of natural justice. Hence, proper opportunity of hearing be given to the appellant.
5. I have gone through the assessment order and also the order of CIT(A) which is ex-parte. Even the order by CIT(A) is totally a non- speaking order. When the order of CIT(A) is confronted to the learned Sr. Departmental Representative, he fairly conceded that the matter can be restored back to the file of the AO or CIT(A). I find from the facts of the case that the issue under consideration is unexplained cash deposit amounting to ₹ 42,77,060/- in the saving bank account of Axis bank account of the Assessee. The assessee has to explain cash deposits by cogent evidences before the Assessing Officer. Similarly, the issue of disallowance of expenses of ₹ 1,89,716/-. As the lower authorities passed a non-speaking order and also not provided opportunity of being heard to the assessee, hence, I restore the matter back to the file of the AO for fresh adjudication after allowing reasonable opportunity of being heard to the assessee. The orders of the lower authorities are set aside and appeal of assessee is allowed for statistical purposes.
In the result, the appeal the appeal of assessee is allowed for statistical purposes Order pronounced in the open court on 14-05-2018. AadoSa kI GaaoYaNaa Kulao mao idnaMk 14.05.2018 kao kI ga[- .