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Ms. Sangita L/H of Late Mr. Sharad Durgaprasda Jain 1, Azad Bungalow, Nadiadwala Colony Mumbai 400 064 Vs. Commissioner of Income Tax24 Mumbai
May, 15th 2014
                  ,   `' 

                 IN THE INCOME TAX APPELLATE TRIBUNAL
                               "E" BENCH, MUMBAI

       ,      ,    

         BEFORE SHRI SANJAY ARORA, ACCOUNTANT MEMBER AND
                   SHRI AMIT SHUKLA, JUDICIAL MEMBER



                      . / ITA no. 2176/Mum./2012
                    (  / Assessment Year : 2007­08)

Ms. Sangita Sharad Jain
L/H of Late Mr. Sharad Durgaprasda Jain                            .................  /
1, Azad Bungalow, Nadiadwala Colony                                                Appellant
Malad (W), Mumbai 400 064

                                     v/s

Commissioner of Income Tax­24                                      ...................  /
Mumbai                                                                         Respondent
  ./ Permanent Account Number ­ AACPJ7439E


                  / Assessee by : Ms. Neha Barve
                  / Revenue by                : Mr. Girija Dayal



     /                                                   /
Date of Hearing ­ 12.03.2014                        Date of Order ­ 12.05.2014


                                          / ORDER

 ,     /
PER AMIT SHUKLA, J.M.


      The aforesaid appeal has been preferred by the assessee
challenging the impugned order dated 7th March 2012, passed under
section 263 of the Income Tax Act, 1961 (for short "the Act") by the
                                                         Ms. Sangita Sharad Jain

                                                                              2

learned Commissioner­XXIV, Mumbai, for the assessment year 2007­
08, on the following grounds of appeal:­

     "The learned CIT(A) erred in passing an ex­parte ordre under
     section 263 without giving the appellant a sufficient opportunity of
     being heard, although Mr. Arun Maniar, C.A. of the appellant filed a
     letter dated 13th February 2012 seeking an adjournment and which
     was accepted in Tapal by the office of the CIT but no date was
     given to the appellant.




     The learned CIT(A) erred in upholding action under section 263
     when the assessment order passed by the Assessing Officer was
     not erroneous and prejudicial to the interests of the Revenue as all
     details were furnished to the Assessing Officer in the assessment
     proceedings.


2.   At the outset, it has been pointed out by the learned Counsel that
the learned Commissioner has passed the impugned order without
giving proper and sufficient opportunity of hearing during the course of
the proceeding under section 263. The learned Counsel submitted that
in response to the show cause notice, the assessee had submitted a
letter, seeking adjournment and on such an adjournment letter no date
was communicated. The learned Commissioner, thereafter, without
providing further opportunity, passed an ex­parte order holding that
the assessment order passed under section 143(3) dated 30 th October
2009, for the assessment year 2007­08 is erroneous insofar as it is
prejudicial to the interests of Revenue and the assessment order has
been set aside on the points raised in the show cause notice.


3.   The learned Departmental Representative, on the other hand,
relied upon the order passed by the learned Commissioner.


4.   We have heard the rival contentions and also perused the
relevant record. The assessee's main objection before us is that the
impugned order has been passed ex­parte without giving reasonable
                                                         Ms. Sangita Sharad Jain

                                                                              3

and sufficient opportunity of hearing to the assessee for presenting its
case, in response to the show cause notice dated 20 th January 2012,
issued under section 263. The assessee had submitted a letter seeking
adjournment before the learned Commissioner on which, no date of
hearing was communicated to the assessee by the Office of the learned
Commissioner­XXIV, Mumbai. The learned Commissioner, without
giving further opportunity, on the basis of show cause notice itself, has
set aside the assessment order on the points raised therein. Hence, in
the interest of justice, we feel that this matter needs to be restored
back to the file of the learned Commissioner to pass fresh order.
Consequently, we set aside the impugned order passed by the learned
Commissioner and restore the entire matter to his file with a direction
to to provide due and effective opportunity of hearing to the assessee
to present its case and then pass a fresh order after considering the
assessee's submissions and objection on merits and in accordance with
the provisions of law. Thus, the grounds raised by the assessee are
allowed for statistical purposes.





5.                 

5.     In the result, assessee's appeal is allowed for statistical purposes.


               12th May 2014   
       Order pronounced in the open Court on 12th May 2014


             Sd/-                                               Sd/-
                                                             
                                                           
        SANJAY ARORA                                      AMIT SHUKLA
     ACCOUNTANT MEMBER                                  JUDICIAL MEMBER




 MUMBAI,  DATED: 12th May 2014
                                            Ms. Sangita Sharad Jain

                                                                 4




     / Copy of the order forwarded to:

(1)    / The Assessee;
(2)    / The Revenue;
(3)    () / The CIT(A);
(4)     / The CIT, Mumbai City concerned;
(5)    ,   ,  / The DR, ITAT, Mumbai;
(6)     / Guard file.
                                   / True Copy
                                    / By Order
 .  / Pradeep J. Chowdhury
   / Sr. Private Secretary
                           /   / (Dy./Asstt. Registrar)
                           ,  / ITAT, Mumbai

 
 
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