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Income Tax Appellate Tribunal, MUMBAI BENCH “SMC”, MUMBAI
The captioned appeal is preferred by the assessee and is directed against the impugned order dated 04/02/2013 of CIT(A)-32, Mumbai, pertaining to the assessment year 2009-10 which in turn has arisen from an order passed by the Assessing Officer dated 28/12/2011 under section 143(3) of the Income Tax Act, 1961( in short “the Act”).
In this appeal the assessee has raised the following Grounds of appeal:-
(Assessment Year : 2009-10) “I. The Ld. Commissioner of Income Tax (Appeal)-32, Mumbai (herein after referred to "Ld. CIT(A)'7) erred in passing the order dated 04/02/2013 confirming the assessment order dated 28/12/2011 passed under Section 143(3) of the Act determining total income of the Appellant at Rs.14,97,630/- as against returned income of Rs.2,22,130/- without appreciating the facts and circumstances of the case. Thus, the appellate order dated 04.02.20 13 is without any basis and the same may be quashed and set aside.
2. Passing of ex-parte order unjustified i.The Ld.CIT(A) erred in passing the order dated 04.02.2013 ex-parte without affording the appellant an appropriate opportunity of being heard. Thus, the appellate order dated 04.02.2013 is against the principles of natural justice. Hence, the same may be quashed and set aside ii..The Ld. CIT(A) failed to appreciate that the Appellant has not received any notice from his office. Therefore, the Appellant, is not aware of any date of hearing fixed by the Ld. CIT(A). Hence, the appellate order dated 04.02.20 13 is passed without providing the sufficient opportunity of being heard to the Appellant. Therefore, the same may be quashed and set aside.
Treating the cash deposited in the saving bank account as unexplained cash credit under section 68 of the Act is unjustified - Rs. 11,38,900/- i. The Ld.. CIT(A) erred in upholding the action of the A.O. in treating the cash amounting to Rs. 11,38,900/- deposited in the saving bank account of the Appellant as unexplained cash credit under section 68 of the Act. The Appellant prays that the addition under section 68 of the Act is unjustified and the same may be deleted. ii. The Ld. CIT(A) failed to appreciate that the cash was deposited in the saving bank account No. 8034 maintained with Punjab & Maharashtra Co-op Bank out of the cash withdrawal from the current account No.9027 maintained with the same bank. Hence, treating the cash deposited amounting to Rs.11,38,900/- in the saving bank account of the Appellant as unexplained cash credit under section 68 of the Act is unjustified and the same may be deleted.
The Appellant denies any liability to pay interest under section 234B and section 234C of the Act. Hence, the same is not leviable.”
(Assessment Year : 2009-10) 3. At the outset the Ld. Representative for the assessee submitted that the appeal of the assessee has been disposed of by the CIT(A) ex- parte without affording an appropriate opportunity of being heard and, therefore, assessee would be satisfied for the present, if the matter is restored back to the file of CIT(A) for adjudication afresh. The Ld. Representative for the assessee also pointed out that though the CIT(A) issued the notice of hearing on four occasions but none of the notices could reach the assessee because after filing of the appeal before CIT(A), the address of the assessee was changed due to the sealing and demolition of the premises by the local Municipal authorities and such change of address was inadvertently not intimated to the CIT(A). Nevertheless, it is sought to be pointed out that the assessee could not appear before the CIT(A), which has resulted in denial of natural justice and, therefore, it was prayed that the matter be restored back to the file of CIT(A) for adjudication afresh.
4. Ld. Departmental Representative appearing for the Revenue has not disputed the preliminary prayer of the assessee for restoration of matter back to the file of CIT(A).
Having considered the rival stands on the preliminary plea of the assessee, I find that some element of negligence can be attributed to the conduct of the assessee in as much as it was the duty of the assessee to promptly inform the office of the CIT(A) of the change in address. Nevertheless, there is also no material to say that such lapse on the part of the assessee was on account of any non-boanafide or intentional reasons. Considering the entirety of facts and circumstances of the case, I deem it fit and proper to accept the plea of the assessee
(Assessment Year : 2009-10) that the matter be revisited by the CIT(A) after considering the pleas of the assessee on merit. For this purpose, I set aside the order of the CIT(A) and restore the matter back to his file for an adjudication afresh after allowing the assessee a reasonable opportunity of being heard, as per law.
Thus, for statistical purposes the appeal of the assessee is treated as partly allowed.
The above decision was pronounced in the open court at the conclusion of the hearing on 20/10/2015.