Manish Bhuva, Thane vs Assessee

आयकर अपीलीय अिधकरण, अिधकरण मुंबई IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES 'B' MUMBAI सव[ौी आय.पी. बंसल, Ûयाियक सदःय एवं ौी बी.आर. भाःकरन, लेखा सदःय के सम¢ । BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER /AND

SHRI B.R.BASKARAN, ACCOUNTANT MEMBER

ITA NO.4640/MUM/2011 (A.Y.2007-08)

Manish Bhuva The DCIT 22 (1), D/301, Nilgiri Apartment No.3 Mumbai.. M.P. Road, Maurya Nagar, Vs. (Respondent) Virar (E) Thane-401 303. GIR No./PAN : AKGPB 0865 N (Appellant )

Appellant by : Shri Anuj Kishnadwala-CA Respondent by : Shri Vivek Batra -Sr. AR

Date of hearing : 07/01/2015 Date of pronouncement : 07/01/2015

ORDER

PER I.P.BANSAL, J.M:

This appeal is filed by the assessee. It is directed against the ex-parte order passed by ld. CIT(A) dated 28/2/2011 for the assessment year 2007-08.

2. Grounds of appeal read as under :-

"1. On the facts and circumstances of the case and in law, the learned CIT(A) erred in upholding an addition of Rs. 27,79,240/- on account of unexplained investments, u/s 69C of the Income Tax Act, 1961.

2. The appellant craves leave to add, to amend, alter / delete and / or modify the above ground of appeal on or before the final date."

2.1 The assessee has also submitted additional grounds which read as under :-

"1. The ld. CIT(A) has erred in passing the exparte order without adjudicating the grounds on merit.

2 ITA NO.4640/MUM/2011 (A.Y.2007-08) 2. The appellant craves leave to add to, amend or alter, the foregoing ground of appeal."

3. It may be mentioned that as per record the appeal was stated to be belatedly filed by 362 days. This was due to inadvertent mistake committed by the assessee in mentioning the date of communication of the appellate order against which appeal was made as it is stated as 13/04/2010. During the course of hearing it was explained that the date of service of the impugned order passed by the ld. CIT(A) could not be 13/04/2010 as the date of order itself is 28/02/2011. It was submitted that there was inadvertent mistake in writing the year which is wrongly written as 2010 and actually it is 2011. After considering the facts, this contention of the ld. AR is found to be correct and appeal is treated to be filed in time and we proceed to decide the present appeal.

3.1 Referring to the additional grounds, it was submitted by the ld. AR of the assessee that additional ground is legal ground and should be admitted. He further submitted that ld. CIT(A) has disposed of the appeal by exparte order qua the assessee without disposing of the same on merits. It was submitted that such recourse could not be admitted by the ld. CIT(A) and reference was made to the decision of ITAT in the case of Gujarat Themis Biosyn Ltd. vs. JCIT [2000] 74 ITD 339 (Ahd.), wherein it has been held that it is obligatory for the CIT(A) to pass a speaking order stating points raised in appeal, his decision thereon and reason for such decision. As such, it is not possible for CIT(A) to dismiss the appeal in limine. The mandate of law is clear that CIT(A) is duty bound to decide the issues on merits. The decision of CIT(A), therefore is riddled with infirmity. Thus, it was pleaded by the ld. AR that in the interest of justice, matter should be restored to CIT(A) with direction to readjudicate the appeal as per law after giving the assessee a reasonable opportunity of hearing.

3.1.1 On the other hand the ld. DR relied on the order passed by ld. CIT(A).

3 ITA NO.4640/MUM/2011 (A.Y.2007-08) 3.2 We have heard both the parties and their contentions have been carefully considered. Ld. CIT(A) has dismissed the appeal filed by the assessee on account of failure of the assessee to attend the proceedings before him. CIT(A) did not decide the appeal on merits. In such a situation, no other course is available to us except to restore this appeal to the file of CIT(A) with direction to re-adjudicate the same as per provisions of law after giving the assessee a reasonable opportunity of hearing. The decision relied upon by the ld. AR supports this view. Accordingly, we restore this appeal to the file of CIT(A) with direction to readjudicate the same in the manner aforesaid.

4. For statistical purposes appeal filed by the assessee is considered to be allowed.

Order pronounced in the open court on 07/01/2015 आदे श कȧ घोषणा खुले Ûयायालय मɅ Ǒदनांकः 07/01/2015 को कȧ गई ।

Sd/- Sd/- (बी.आर. भाःकरन /B.R.BASKARAN ) (आय.पी. बंसल / I.P. BANSAL)

लेखा सदःय / ACCOUNTANT MEMBER Ûयाियक सदःय / JUDICIAL MEMBER मुंबई Mumbai; Ǒदनांक Dated 07/01/2015 व.िन.स./Jv, Sr. PS 4 ITA NO.4640/MUM/2011 (A.Y.2007-08)

आदे श कȧ ूितिलǒप अमेǒषत/Copy षत of the Order forwarded to : 1. अपीलाथȸ / The Appellant 2. ू×यथȸ / The Respondent. 3. आयकर आयुƠ(अपील) / The CIT(A)- 4. आयकर आयुƠ / CIT

5. ǒवभागीय ूितिनिध, आयकर अपीलीय अिधकरण, मुंबई / DR, ITAT, Mumbai

6. गाड[ फाईल / Guard file.

आदे शानुसार/ ार BY ORDER, स×याǒपत ूित //True Copy//

उप/सहायक उप सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपीलीय अिधकरण, अिधकरण मुंबई / ITAT, Mumbai