Purshottam L. Thakkar, Mumbai vs Assessee

सव ी आई.पी. बंसल, या यक सद य, एवं ी एन .के ."ब#लैया, लेखा सद य के सम& Before Shri I P Bansal, JM, & Shri N K Billaiya, AM

आयकर अपील सं./ITA No.2578/Mum/2013 ( नधा रण वष / Assessment Year :2008-09)

Purshottam L Thakkar Vs. ITO- 23(3)(1) 29 Shree Krupa Bldg., Mumbai R H B Road, Mulund (W) Mumbai- 400 080 PAN : AAAPT2372A (अपीलाथ) /Appellant) (*+यथ) / Respondent)

Appellant by : Shri Abhishek Tilak Respondent by : Shri Premanand J

Date of Hearing : 20.04.2015 Date of Pronouncement : 20.04.2015

आदे श / O R D E R

Per I P Bansal, Judicial Member :

This appeal is filed by the assessee. It is directed against the order of the CIT(A) dated 11.02.2013 for A.Y. 2008-09. The assessee has raised the following grounds of appeal:

"1.1. The learned Commissioner of Income-tax (Appeals)-22, Mumbai, ["the ld. CIT(A)"] erred in confirming the action of the Assessing Officer ["Ä.O."] in framing the assessment in violation of the principles of natural justice in as much as no proper, effective and sufficient opportunity of being heard was granted to the Appellant.

2 ITA No 2578/M/2013 AY:2008-09

1.2 The ld. CIT(A) also erred in concluding that the Appellant had approached the appeal in very casual manner and was not interested in prosecuting the appeal.

1.3 The ld. CIT(A) has further erred in dismissing the appeal of the Appellant without taking into consideration the written submissions made by the Appellant on 28.01.2013.

1.4 It is submitted that in the facts and circumstances of the case, and in law, the order is liable to be held as bad and illegal.

2. WITHOUT PREJUDICE TO THE ABOVE

2.1 The ld. CIT(A) erred in confirming the addition of Rs.3,16,557/- made on account of alleged cash credits under section 68 of the Act. 2.2 The ld CIT(A) erred in confirming the addition of Rs.1,48,849/- made on account of alleged unexplained investments under section 69 of the Act. 2.3 The ld. CIT(A) erred in confirming the action of the A.O. of treating/computing the long term capital gain of Rs.1,34,006/- [exempt under section 10(38) and the short term capital gain of Rs.55,964/- under the head "Profit & Gains of Business or Profession"

2. At the time of discussion, it was seen that the learned CIT(A), without deciding the appeal on merits, had dismissed the appeal on account of non prosecution by the assessee. The Tribunal in the case of Gujarat Themis Biosyn Ltd 74 ITD 339 (Ahd), has held that it is obligatory for the CIT(A) to pass a speaking order stating the points raised in appeal, his decision thereon and reason for such decision. As such, it is not possible for the CIT(A) to dismiss the appeal in limine. The mandate of law makes it very clear that the CIT(A) is duty bound to decide the issue on merits. Therefore, the decision rendered by the CIT(A) is not in accordance with the provisions of law. Accordingly, after hearing both the parties we consider it just and proper to restore this issue to the file of the CIT(A) for adjudication on merits after providing the assessee reasonable opportunity of being heard. To ensure compliance from the assesee's side, we have directed the learned AR to appear before the CIT(A) on 9th June 2015 when the learned CIT(A) will take the appeal filed by the assessee for hearing.

3. We dispose of this appeal in the manner aforesaid. The order was pronounced in the open court and the learned AR has taken note of the proceedings. Further the 3 ITA No 2578/M/2013 AY:2008-09

learned AR has ensured that the directions of the Tribunal for appearance before the CIT(A) on 9th June 2015 will be complied with.

4. In view of our above discussion, the appeal filed by the assessee is treated as allowed for statistical purposes in the manner aforesaid.

Order pronounced in the open court on this 20th day of April 2015.

Sd/- Sd/- (N K Billaiya) (I P Bansal) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, Dt : 20th April, 2015 SA

Copy forwarded to : 1. The Appellant 2. The Respondent 3. The C.I.T, concerned 4. The CIT (A)-concerned 5. The DR, "F" Bench, Mumbai BY ORDER

//True Copy// ASSISTANT REGISTRAR ITAT, Mumbai Benches, Mumbai