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Order u/s.254(1)of the Income-tax Act,1961(Act) अनुसार PER Rajendra A.M.- लेखा सद�य सद�य राजे�� राजे�� केकेकेके अनुसार लेखा लेखा लेखा सद�य सद�य राजे�� राजे�� अनुसार अनुसार Challenging the order dated 01.02.2012 of CIT(A)-25, Mumbai the assessee has filed the present appeal.
2.Assessee-firm had filed its return of income on 24/10/2003, declaring total income Rs.12, 315/-.Initially the case was processed u/s. 143(1) of the Act.Subsequently an order u/s. 143(3) was passed on 30.12.2005 assessing the total income at Rs.13.26 lacs.While completing the assessment the Assessing Officer (AO) made disallowance on account of Robbery claim not received.The assessee preferred an appeal before the First Appellate Authority (FAA),who dismissed the appeal filed by it.
3.Being aggrieved by the order of the FAA,the assessee filed an appeal before the Tribunal.The Tribunal vide its order dt.26.2.2010 (ITA/6794/Mum/2008) set aside the order of the FAA and restored the issue to the file of the AO for fresh adjudication.The Tribunal made the following observation: “4.After considering the submission and perusing the material on record, we find that matter should be sent back to the file of AO.The main reason for denying the claim of the assessee was on the basis of report obtained from the insurance company. Copy of the report obtained from the insurance company was not provided to the assessee.We further note that the police has given a non traceable report by mentioning that the claim is genuine, however, not traced.Therefore, they have issued non traceable report. From this report it is clearly seen that the claim of the assessee is genuine. Since the police could not recover the amount of theft; therefore, they have issued an non traceable report.There may be so many reasons in not allowing the claim by the insurance company. Since the report obtained from the insurance company, was not given to the assessee, therefore, in view of the facts and circumstances and to meet the ends of justice we restore this issue to the file of AO to pass a fresh order ...............”” The AO,in pursuance of Tribunal’s order,passed an order holding that there was no change in the finding of the facts of the case after the receipt of report from the insurance company. However,the AO did not mention anything about furnishing the necessary documents to the assessee. The assessee again preferred an appeal before the FAA,who held that claim of theft made by the assessee was not genuine and again dismissed the appeal.
2131/M/12-Alankar 5.Before us,the Authorised Representative (AR) stated that the Tribunal had made a specific reference about the report and had directed the AO to furnish a copy of the same while deciding the issue afresh. That the report was not made available to the assessee , that the AO vide his letter dt.26.12.2014 had forwarded the copy of the certain documents,that the report of the investigator was not made available to the assessee,that the assessee could not represent the case in absence of the vital documents.The Departmental Representative (DR) supported the order of the FAA. 6.We find that the Tribunal had restored back the matter to the file of the AO with specific directions,that the assessee AO had handed over the surveyor’s report in 2014 to the assessee- much after the passing of assessment order,that the report of the investigator was not made available to the assessee,that the disallowance was based on the reports.In our opinion,the AO should have furnished all the relevant material to the assessee after receiving the order of the Tribunal.But,he chose not to give the necessary documents to it.In our opinion,it was a voilation of principles of natural justice and the order of the Tribunal remained unexecuted in real sense.In our opinion,in the interest of justice,the matter should be again sent back to the file of the AO.He is directed to hand over the report of the investigator to the assessee and afford a reasonable opportunity of hearing to it before finalising the assessment.Effective ground of appeal is decided in favour of the assessee,in part.