If AO not consider all document contained in the paper book filed by the assessee than the decision deserved to be set asideIf AO not consider all document contained in the paper book filed by the ass

IN THE INCOME TAX APPELLATE TRIBUNAL

MUMBAI BENCHES, ‘D’, MUMBAI

BEFORE HON’BLE PRESIDENT SHRI G.E.VEERABHADRAPPA

AND SHRI D.K.AGARWAL (JM)

ITA No.6354/Mum/2010

(Assessment Year: 2006-07)

Rujuta N.Shah, Flat No.52,

Brindaban, 65, Linking Road,

Santacruz(W),

Mumbai-400054

PAN: AVFPS3065B

APPELLANT

V/s

Income Tax Officer

                                                                      19(2)(2),

Piramal Chambers, Opp.Lalbaug Post Office,

3rd Floor,

Mumbai-400012.

RESPONDENT

Date of Hearing:5.1.2012

Date of Pronouncement:18.1.2012

Appellant by: Shri Dhirendra M.Shah

Respondent by: Shri C.G.K.Nair

O R D E R

PER D.K.AGARWAL (JM)

This appeal preferred by the assessee is directed against the order dated 15.6.2010 passed by the ld. CIT(A) for the assessment year 2006-07.

2. Briefly stated facts of the case are that the assessee an individual derives income from house property, business, capital gains and income from other sources, filed return declaring total income at Rs.5,72,052/-. However, the assessment was completed after making various disallowances and additions at an income of Rs.8,26,028/-vide order dated 30.12.2008 passed u/s 143(3) of the Income Tax Act, 1961 (in short the Act).

3. On appeal, before the ld. CIT(A), there was no compliance by the assessee, therefore, the ld. CIT(A) passed ex-parte order on the basis of material available on record and dismissed the assessee’s appeal.

4. Being aggrieved by the order of the ld. CIT(A), the assessee is in appeal before us taking fol lowing grounds of appeal :

“1. On the facts and in the circumstances of the case, the learned CIT(A) erred in passing ex-parte order and erred in observing that, there was no compliance from the side of the appel lant and on presumption passed the appel late order which be cancelled.

2. (a) On the facts and in the circumstances of the case, the assessing officer erred in not al lowing deduction of Rs.86,985/- in computing the property income which should be allowed in full.

(b) The assessing officer fai led to appreciate that, Rs.86,985/- are the society charges which is to be al low in computing the property income.

3. On the facts and in the circumstances of the ease, the assessing officer erred in making addition of Rs.76,472/- by estimating property income in respect of shop at Rs.1,09,246/- which is arbitrary and contrary to the facts on record and such estimate be made as income from house property be deleted and addition made of Rs.76,472/- be deleted.

4. On the facts and in the circumstances of the case, the assessing officer erred in disallowing 1/5th of motor car depreciation of Rs. 15,055/-, interest on car loan Rs.3,650/- which addition made be deleted.

5. On the facts and in the circumstances of the case, the assessing officer erred in making addition of Rs.4,000/- which be deleted.”

5. At the time of hearing, the ld. counsel for the assessee submits that no proper and due opportunity was not provided to the assessee by the ld. CIT(A) inasmuch as, the ld. CIT(A) has also not considered the paper book filed by the assessee, while deciding the appeal ex-parte, therefore, in the interest of justice the order passed by the ld. CIT(A) be set aside to his file to decide the same afresh which was not objected to by the ld. DR.

6. Having carefully heard the submissions of the rival parties and perusing the material available on record, we observe that no doubt, the ld. CIT(A) has provided various opportunities to the assessee. However, he has passed ex-parte order as on the last date of hearing i.e.10.6.2010, nobody from the  assessee appeared. In the absence of any material to show that the last date of hearing was noted by the assessee or his counsel and keeping in view that the ld. CIT(A) while deciding the appeal has not considered the various documents contained in the paper book filed by the assessee before him, therefore, in the interests of justice, we consider it fair and reasonable that the matter should go back to the file of the ld. CIT(A) and accordingly, we set aside the order passed by the ld. CIT(A) to his file to decide the entire appeal of the assessee afresh and according to law after providing reasonable opportunity of being heard to the assessee. The grounds taken by the assessee are therefore partly allowed for statistical purposes.

7. In the result, the assessee’s appeal stands partly allowed for statistical purposes.

Order pronounced in the open court on 18th Jan.,2012.

                                                        Sd                                     Sd

                                  (G.E.VEERABHADRAPPA)   (D.K.AGARWAL)

                                                 PRESIDENT             JUDICIAL MEMBER

Mumbai, Dated 18th January,2012.

SRL:

Copy to:

1. Appellant

2. Respondent

3. CIT Concerned

4. CIT(A) concerned

5. DR concerned Bench

6. Guard file.

True copy

                                                                                                                         BY ORDER

ASSTT. REGISTRAR,

                                                                                                                         ITAT, MUMBAI