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Prabhakar P Purohit,2nd floor, Satwant Villa Aarey Road,Goregoan(W),Mumbai. vs. ACIT, Cent. Circle-47,Aayakar Bhavan, M.K. Road,Mumbai.
December, 12th 2012
                               MUMBAI BENCH `C' BENCH


                            ITA Nos.4431 & 4432/Mum/2011
                         Assessment Years: 2004-05 & 2005-06

Prabhakar P Purohit,                          ACIT, Cent. Circle-47,
2nd floor, Satwant Villa Aarey Road,          Aayakar Bhavan, M.K. Road,
Goregoan(W),                                  Mumbai.
Mumbai.                                 Vs.
PA No.AENPP 7243 P

(Appellant)                                   (Respondent)

                              Appellant by : Shri G.P.Mehta
                              Respondent by: Shri A.C.Tejpal

Date of hearing:                10 .12.2012
Date of pronouncement:           10.12.2012


Per Bench:

       The assessee has filed these two appeals for assessment years 2004-05 and
2005-06 against two separate orders both dated 20.1.2011 of ld CIT(A)-38, Mumbai.

2.     At the time of hearing, ld counsel for assessee submitted that additional grounds
taken by the assessee for both the assessment years under consideration before ld
CIT(A) vide letter dated 29th January, 2009 have not been adjudicated by ld CIT(A),
which read as under:

       "1. The assessment order passed uls.153A r.w.s. 144 of the I. T. Act,
       1961, is ab-initio void, inasmuch as, as no return of income was
       prescribed for the assessment year under appeal by the Rule making
       authority, there was no basis available for completion of assessment.

       2. The learned Assessing Officer has grossly erred in passing assessment
       order u/s.153A, 144 of the I. T. Act, 1961, determining, income at
       Rs.3,08,000/- for A.Y. 2004-05 and (Rs.30,88,000/- for A.Y. 2005-06)
       even though the appellant was precluded from filing return of income,
       same not having been prescribed by the Rule making authority.
                                              2                    ITA Nos.4431 & 4432/Mum/2011
                                                              Assessment Years: 2004-05 & 2005-06

       3. The assessment order passed u/s.153A r.w.s. 144 of the LT. Act, i961
       is ab-initio void, inasmuch as, the material gathered or evidences
       collected during search & post search inquiries, were never made
       available to the appellant, prior to using the same for framing the
       assessment. Consequently, the impugned assessment order is in clear
       contradiction to the principles of natural justice.

       4. The learned Assessing Officer has grossly erred in estimating income at
       Rs.3,088,000/- being 1 % of deposits appearing in the third party's bank
       account, without giving an opportunity of being heard on the issue

Ld. A.R. submitted that above additional grounds go to the root of the validity of the
assessment orders and, therefore, they should have been decided before considering
the additions made by the Assessing officer.

3.     Ld CIT(DR) submitted that he has no objection if the matter is restored to the
file of ld CIT(A) to consider and decide the additional grounds taken before him.

4.     We have considered submissions of ld representatives of parties and orders of
authorities below.      It is a fact that the additional grounds go to the validity of the
assessment order.       Therefore, we set aside the impugned orders of ld CIT(A) and
restore the same to his file to consider additional grounds taken by the assessee before
him by a speaking order after giving reasonable opportunity of hearing to both parties.

5.     Since we have restored the matter to the file of ld CIT(A), we do not consider it
prudent to decide other grounds taken by the assessee disputing confirmation of
additions made by the AO.

6.     In the result, both the appeals filed by assessee are treated as allowed for
statistical purposes.

       Pronounced in the open court at the time of hearing i.e. on 10th December, 2012

                    Sd/-                                           Sd/-
              (N.K. BILLAIYA)                                 (B.R. MITTAL)
            Accountant Member                                Judicial Member

Mumbai, Dated        10th    December, 2012
                                       3                   ITA Nos.4431 & 4432/Mum/2011
                                                      Assessment Years: 2004-05 & 2005-06


Copy to:
1. The appellant
2. The respondent
3. Commissioner of Income Tax (Appeals),38, Mumbai
4. Commissioner of Income Tax, C-IV , Mumbai
5. Departmental Representative, Bench `C' Mumbai

//TRUE COPY//                                        BY ORDER

                                        ASSTT. REGISTRAR, ITAT, MUMBAI
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