Order passed in breach of principle of natural Justice is to be quashed or set-aside

IN THE INCOME TAX APPELLATE TRIBUNAL

“H” BENCH: MUMBAI

BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER

AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER

ITA No.3376/Mum/2010

(Assessment Year: 2005-06)

M/s. Baker Technical Services Private Limited,

Planet, 2nd Floor, 10, Turner Road,

Bandra (W),

Mumbai -400 050 ......…. Appellant

Vs

ITO -9(1)(2),

Mumbai .....… Respondent

PAN: AAACB 3478 L

Appellant by: Shri K. Gopal

Respondent by: Shri V.V. Shastri

Date of Hearing: 04.08.2011

                                                Date of Pronouncement: 19.08.2011

O R D E R

PER R.S. PADVEKAR, JM:

In this appeal the assessee has challenged the impugned order of the Ld. CIT (A)-19, Mumbai dated 22.03.2010 for the A.Y. 2005-06.

The assessee has raised the following grounds:-

“1. The Ld. Commissioner of Income Tax (Appeals) [hereinafter referred to as “CIT (A)”] erred in passing the order dated 22.03.2010 upholding the order of the Ld. AO without affording the Appellant proper opportunity of being heard. Therefore, the order dated 22.03.2010 passed by the Ld. CIT (A) is in breach of principles of natural justice and hence, the same may be quashed and set aside.

2. The Ld. CIT (A) erred in confirming the action of the AO in making an addition of Rs. 9,32,894/- by determining the annual letting value of the property at Rs. 13,50,000/- as against the actual rent received of Rs. 78,000/-, without appreciating the fact and circumstances of the case. The Appellant, therefore, prays that the addition of Rs. 9,32,894/- to the Income from House Property is not at all justified and the same may be quashed.

3. The Ld. CIT (A) erred in confirming the action of the Assessing Officer in denying the set off of brought forward losses of earlier years amounting to Rs. 3,005/- without appreciating the facts and circumstances of the case. The Appellant prays that the Ld. CIT (A0 is not at all justified in disallowing the set off of brought losses of earlier years amounting to Rs. 3,005/- and hence, the same may be deleted.

4. The Appellant denies any liability to pay the interest under section 234B and 234C of the Income Tax Act, 1961. Hence, the same are not leviable.”

2. The assessee is in the trading of shares and securities. The assessee filed the return of income for the A.Y. 2005-06 declaring total income at Rs. 97,900/-. The assessment was completed u/s.143(3) of the Act determining the total income at Rs. 9,91,307/-. The assessee challenged the assessment order before the Ld. CIT (A) by raising the different grievances. The Ld. CIT (A) disposed off the assessee’s appeal ex-parte dismissing the same.

3. We have heard the parties. We find that, as per order of the Ld. CIT (A) the appeal was posted for hearing on 8.02.2010. On the said date, the assessee sought the adjournment. Again the appeal was fixed on 20th February 2010. But it appears that there was no response from the assessee. Nowhere, it is mentioned by the Ld. CIT (A) that notice was duly served on the assessee fixing the date of hearing. Otherwise also, no prejudice should have been caused to the Ld. CIT (A) if one opportunity would have been given. In our opinion, the Ld. CIT (A) has disposed off the appeal in undue haste. We, therefore, set aside the order of the Ld. CIT (A) and restore the entire matter to his file for fresh adjudication as per law after giving opportunity to the assessee of being heard.

4. In the result, assessee’s appeal is allowed for the statistical purposes.

Order pronounced in the open court on this day of 19th August 2011.

                  Sd/-                                                                        Sd/-

        (P.M. JAGTAP)                                              (R.S. PADVEKAR)

 ACCOUNTANT MEMBER                               JUDICIAL MEMBER

Mumbai, Date: 19th August 2011

Copy to:-

1) The Appellant.

2) The Respondent.

3) The CIT (A)–19, Mumbai.

4) The CIT-V, Mumbai.

5) The D.R. “H” Bench, Mumbai.

By Order

/ / True Copy / /

   Asstt. Registrar

I.T.A.T., Mumbai

*Chavan