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Income Tax Appellate Tribunal, MUMBAI BENCHES “D”, MUMBAI
Before: SHRI B.R.BASKARAN (AM) & SHRI RAM LAL NEGI (JM)
This appeal has been filed by the assessee against order dated 31/03/2013 passed by the Ld. CIT(Appeals)-25 Mumbai for the Asst. Year 2009-10, whereby the Ld. CIT(A) has upheld the finding of the A.O and dismissed the assessee’s appeal.
The assessee has challenged the impugned order passed by the Ld. CIT(A) on the following effective grounds of appeal :-
1. On the facts, in the circumstances of the case & in law the Learned CIT(A) has erred in passing an ex-parte appeal order without giving the appellant proper opportunity of being heard.
2. On the facts, in the circumstances of the case & in law the Learned CIT(A) has further erred in upholding the disallowance made by the Assessing Officer (Ld. A.O.) thereby increasing the returned income from Rs. 2,02,230/- to Rs. 31,42,230/-.
3. The Ld. CIT(A) has also erred in upholding the decision of the Ld. A.O. of considering the cash deposit of Rs. 29,40,000/- as unexplained investment under section 69.
At the very outset the Ld. Authorised Representative (AR) of the assessee submitted that the impugned order has been passed ex parte without giving an opportunity of being heard of the appellant/assessee, therefore, the impugned order may be set aside and the disallowance of the depreciation confirmed by the CIT(A) may be deleted, or in alternative, the file may be remanded back to the Ld. CIT(A) for deciding the appeal afresh after providing an opportunity of being heard to the assessee.
The Ld. Departmental Representative (DR) on the other hand submitted that since the assessee/appellant did not appear before the Ld. CIT(A) despite the services of notices through Regd. Post, he is stopped from raising the plea that opportunity of being heard was not afforded to him to pursue his case.
We have heard the rival submissions and also perused the documents on record. Although the Ld. CIT(A) has mentioned the dated on which notices to the assessee were sent through registered speed post. Before proceeding ex parte, the Ld.CIT(A) has recorded his satisfaction to the effect that the assessee does not want to pursue his case. Yet, in our considered view, since the first appellate authority has not decided the case on merits, in the interest of justice and fair play, he should get an opportunity to present his case before the first appellate authority. We, therefore, set aside the ex parte order and restore the same to the Ld. CIT(A) to decide the same afresh, after giving an opportunity of being heard to the assessee.
In the result appeal filed by the assessee for the A.Y. 2009-10 is allowed for statistical purpose.