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Income Tax Appellate Tribunal, MUMBAI BENCHES “E”, MUMBAI
Before: SHRI B.R.BASKARAN (AM) & SHRI RAM LAL NEGI (JM)
The present appeal has been preferred by the assessee against order dated 25/05/2011 passed by the Ld. CIT(Appeals)-33 Mumbai for the Asst. Year 2005-06 whereby the Ld. CIT(A) partly allowed the appeal filed by the assessee against assessment order passed u/s 143(3) of the Income Tax Act, 1961 (in short ‘the Act’).
Still aggrieved, the assessee in appeal before the Tribunal raising the following grounds of appeal:-
On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in :- i. Not giving an opportunity of being heard ii. Confirming the addition of Rs. 18,14,129/- to income from House property by adopting the market rent when some of the units were under the tenancy law and in litigation. iii. Confirming the addition of: 1. Expenses of Rs. 1,47,280 (being Telephone bills not submitted) 2. Telephone expenses of Rs. 8,923 (59,490@15%), 3. Travelling Exp of Rs. 11,812 (78,746 @15%), 4. Vehicle Exp of Rs. 31,626 (2,10,840 @ 15%) 5. Membership & Subscription of Rs. 52,897 (100% disallowed) & 6. Salaries & Wages of Rs. 42, 168 (for want of details of Salary & wages out of Rs. 2,17,164 claimed)
Any consequential relief, to which the Appellant may be entitled under the law in pursuance of the aforesaid grounds of appeal, or otherwise, may thus be granted.
The Ld. authorized representative for the assessee (AR) at the outset submitted that the impugned order is bad in law, as the same has been passed in violation of principle of natural justice. The assessee was not afforded reasonable opportunity of being heard. Hence the order is liable to be set aside.
On the other hand the Ld. Departmental Representative (DR) submitted that since the assessee did not appear on the date of hearing, the assessee cannot take the plea that the Ld. CIT (A) has wrongly proceeded ex parte without affording opportunity of being heard.
We have heard the rival submissions and also gone through the material placed before us. We notice that the appeal was fixed for hearing on 11.9.2009 and the notice to this effect was issued 24.8.2009. In response to the said notice, the assessee sought adjournment with the request to post the appeal for hearing by the end of October, 2009. Then after a gap of more than one year, notice was again issued by the Ld. CIT(A) on 12.5.2011 directing the assessee to appear on 25.05.2011 (wrongly typed as 25.02.2011). Since, on 25. 05.2011 none appeared on behalf of the assessee, the Ld. CIT(A) decided the appeal ex parte. It is also not clear from the impugned order that notice dated 12.5.2011 was duly served upon the assessee. The aforesaid facts suggest that the assessee was not given a reasonable opportunity of being heard and the order was passed in violation of one of the principles of natural justice and fair play. We are therefore, of the considered view that the assessee should get an opportunity to present his case before the first appellate authority. Hence, we allow the first ground of appeal of the assessee in the interest of justice and without deciding the appeal on merit, send the appeal back to the Ld. CIT(A) for adjudicating the same afresh after giving a reasonable opportunity of being heard to the appellant/assessee. The appeal is disposed of accordingly.
In the result, the assessee’s appeal for the assessment year 2005-06 is partly allowed.