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Income Tax Appellate Tribunal, “C” BENCH, MUMBAI
Chandrakant D. Shah Income Tax Officer A/703, Silverbirch, Vasant Ward 17(1)(3) R. No.116, 1st Floor, Aayakar Garden, Near Red Wood, Off Vs. LBS Marg, Mulund (W) Bhavan, M.K. RD Mumbai-400080 Mumbai-400020 PAN No. AKHPS5507R .. Appellant Respondent Assessee by .. Shri Dharmesh Shah, AR .. Shri Rajat Mittal, DR Revenue by Date of hearing .. 22-05-2017 .. Date of pronouncement 24-05-2017 O R D E R PER MAHAVIR SINGH, JM:
This appeal by the assessee is arising out of the order of CIT(A)-28, Mumbai, in appeal No. CIT(A)-28/IT-429/ITO-17(1)(3)/2015-16 dated 17-10- 2016. The Assessment was framed by ITO, Ward 17(1)(3), Mumbai for the A.Y. 2012-13 vide order dated 30-03-2015 u/s 143(3) of the Income Tax Act, 1961 (hereinafter ‘the Act’).
2. At the outset, the learned Counsel for the assessee stated that the CIT(A) dismissed the appeal in violation of principal of natural justice and not granting opportunity of being heard to the assessee. For this assessee specifically drew our attention to ground No. 1 and 2, which reads as under: -
“1. The ld. Commissioner of Income Tax (Appeals) has erred in law and facts in passing the order under section 250 of the Act and dismissing the appeal of the appellant.
The ld. Commissioner of Income Tax (Appeals) has erred in law and in facts in passing
Chandrakant D. Shah A.Y:12-13 order and dismissing the appeal of the appellant without granting sufficient opportunity of hearing to the appellant.”
The learned Counsel for the assessee stated that the only issue regarding addition of cessation of liabilities under section 41(1) of the Act at Rs. 65,10,036/-. The learned Counsel for the assessee drew our attention to CIT(A)’s order which is ex-parte. He stated that the assessee could not submit the details, he referred to Para 8 of its prayer for admission of additional evidences which reads as under: -: -
“8. It is submitted that if I would have been granted an opportunity of hearing, it would have proved that the addition made by the Assessing Officer was not correct and that the liability could not have been added on the ground that the same not required to be paid. These evidences also prove that the balances are not pertaining to transaction for year under appeal, but relating to earlier year. The evidences enclosed herewith at page no.3 to 39 prove that the liabilities which are outstanding were paid, partly or fully, in the subsequent years thereby proving that there was no cessation or remission of the liabilities so added by the Assessing Officer. The fact that the payments have been made to these parties was also confirmed by the bankers vide certificate dated 23.08.2016 issued by them at the specific request of the appellant. It is also proved that the addition is made on account of opening balances which is incorrect.”
For this he stated various reasons that the assessee could not attend the hearing on 14-10-2016 due to receipt of the notice subsequent to the date of hearing and qua that grievance application dated 18-11-2016 was filed, which is Page 2 of 4 Chandrakant D. Shah A.Y:12-13 enclosed in assessee’s paper book at pages 1 and 2. When these facts were confronted to the learned Sr. DR, he conceded that the issue can be remitted back to the file of the CIT(A).
In the facts in entirety and after going through the circumstances of the case, we feel that the assessee should be given opportunity of being heard by the CIT(A). Accordingly, we restore this matter back to the file of the CIT(A), who after taking additional evidences will decide the issue. The appeal of the assessee is allowed for statistical purposes.
In the result, the appeal of assessee is allowed for statistical purposes. Order pronounced in the open court on 24-05-2017.