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Income Tax Appellate Tribunal, “C” BENCH, MUMBAI
This appeal by the assessee is arising out of the order of Commissioner of Income Tax (Appeals)-21, Mumbai, [in short CIT(A)] in appeal No. CIT(A)- 21/ITO-9(2)(1)/I.T-108/2014-15 dated 19-02-2016. The Assessment was framed by the Income Tax Officer, Ward-9(2)(1), Mumbai (in short ITO) for the assessment year 2011-12 vide order dated 19-03-2014 under section 143(3) of the Income Tax Act, 1961(hereinafter ‘the Act’).
The assessee has challenged the following addition raised by way of ground No. 2.1 and 3.1 as under: - “2.1 The ld. CIT(A) erred in confirming the addition of the AO in making disallowance of ₹ 1,80,045/- under 14A of the income –tax Act, 1961 r.w. Rule 8D of the Income- tax Rules, 1962.
3.1 The ld. CIT(A) erred in confirming the addition of the AO in making addition of Rs. 75,12,000/- as long term capital gain."
The assessee has also raised the issue of natural justice that the CIT(A) has not provided reasonable opportunity of being heard to the assessee and for this he raised the following ground No. 1:-
“1.1 The learned Commissioner of Income-tax(appeals)-21, Mumbai [“Ld. CIT(A) erred in passing the appellate order in breach of the principle of natural justice.
1.2 While doing so, the ld. CIT(A) failed to appreciate that:
(i) The appellant was not given fair, reasonable and proper opportunity of being heard to the appellant; and (ii) In any case, the Appellant was prevented by reasonable causes beyond it controls to make effective and proper representation.”
At the outset, the learned Counsel for the assessee drew our attention to CIT(A)’s order which is ex-parte based on material available on record. The learned Counsel for the assessee stated that the assessee is ready to co-operate with the CIT(A) in case one more opportunity is given to him and for this she requested for setting aside of this order of CIT(A). On query from the Bench the learned Sr. Departmental Representative, fairly agreed for set aside of the order of CIT(A) and remanding the matter back for fresh adjudication.
After hearing both the sides and going through the case records, we noticed that practically the CIT(A)’s order is ex-parte and based on material record. In the interest of natural justice, we set aside the order of CIT(A) and remand the matter back to the file of learned CIT(A) for fresh adjudication on both the issues, who will decide after allowing reasonable opportunity of being heard to the assessee. Needless to say, the assessee will produce whatever evidence called for examination by the CIT(A) and he will adjudicate the issues accordingly. The appeal of assessee is allowed for statistical purposes.
In the result, the appeal assessee is allowed for statistical purposes.
Order pronounced in the open court on 23-01-2018.