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M/s Ompowertech Associates & Contractors Pvt. Ltd.,302, Vardhan Apartment,Nanda Patkar Road, Vs. ITO Wd. 7(1)-2, Aayakar Bhavan,Mumbai 400 020.
June, 14th 2012
                MUMBAI BENCHES " C ", MUMBAI

                 AND SHRI RAJENDRA, A.M.

                     ITA No. : 7956/Mum/2010
                     Assessment Year : 2002-03

M/s Ompowertech Associates &                   ITO Wd. 7(1)-2,
Contractors Pvt. Ltd.,                         Aayakar Bhavan,
302, Vardhan Apartment,                        Mumbai ­ 400 020.
Nanda Patkar Road,
Vile Parle (E),
Mumbai ­ 400057.
            (Appellant)                               (Respondent)

                     Appellant by          :    None
                   Respondent by           :    Shri D.S. Sunder Singh

                   Date of hearing         :    12-6-2012
           Date of Pronouncement           :    12-6-2012



     This appeal preferred by the assessee is directed against the

order dated 28-7-2010 passed by the ld. CIT(A)- 13, Mumbai for the

assessment year 2002-03.

2.   In this case, the appeal was fixed for hearing on 4-6-2012. On

4-6-2012, a short adjournment was sought by the assessee on the

ground that the appeal is under preparation and the counsel is busy.
                                                ITA No : 7956/Mum/2010

Accordingly the case was adjourned to 12-6-2012.         On 12-6-2012,

again adjournment was sought on the ground that the counsel for the

assessee is out of station. Since the adjournment was already granted

at the request of the assessee and in the absence of any power of

attorney, the Bench rejected the adjournment application filed by the

assessee and it was decided to dispose of the appeal ex parte qua the

assessee on merits after hearing the ld. D.R.

3.    Briefly stated facts of the case are that the assessee company is a

contractor. The return was filed declaring total income of Rs. 32,620/-.

However, the assessment was completed at an income of Rs.

53,93,490/- vide order dtd. 28-3-2005 passed u/s 143(3) of the Income

Tax Act, 1961 (the Act).   On appeal, the ld. CIT(A) provided various

opportunities to the assessee.      However, in the absence of any

compliance by the assessee, the ld. CIT(A) after considering the remand

report submitted by the A.O. while observing that the assessee has not

paid self assessment tax of Rs. 11,645/- as per return of income filed

by it and in the absence of books of accounts, vide his ex parte order

held that the A.O. was justified in estimating the profit and making the

disallowance/addition and accordingly dismissed the appeal.
                                                 ITA No : 7956/Mum/2010

4.    Being aggrieved by the order of the ld. CIT(A), the assessee is in

appeal before us challenging in all the grounds the sustenance of

addition/disallowance made by the A.O.

5.    At the time of hearing the ld. D.R. while relying on the order of

A.O. and the ld. CIT(A) submits that he has no objection if the appeal is

restored back to the file of the ld. CIT(A).

6.    We have carefully considered the submissions of the ld. D.R. and

perused the material available on record. We find that in this case,

inspite of various opportunities provided to the assessee, the ld. CIT(A)

has dismissed the assessee's appeal on the ground that the assessee

has not paid self assessment tax of Rs. 11,645/- and has not produced

the books of accounts. In the absence of any material to show that the

assessee was asked to produce the books of accounts and keeping in

view that the assessee in the Memorandum of Appeal i.e. (Form No. 35)

filed before the ld. CIT(A) mentioned that the admitted tax of Rs.

11,645/- has duly been deposited, we are of the view that the ld. CIT(A)

was not justified in dismissing the assessee's appeal without providing

specific opportunity of being heard to the assessee. This being so and

keeping in view 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) and

send back the matter to his file to decide the same afresh and
                                                  ITA No : 7956/Mum/2010

according to law after providing sufficient opportunity of being heard to

the assessee.    All the grounds taken by the assessee are, therefore,

partly allowed for statistical purpose.

4.     In the result, the assessee's appeal stands partly allowed for
statistical purpose.

       Order pronounced in the open court on 12th day of June, 2012.

           ( RAJENDRA )                    ( DINESH KUMAR AGARWAL )
       ACCOUNTANT MEMBER                        JUDICIAL MEMBER

Mumbai, Dt: 12.06.2012.

Copy   forwarded to :
  1.    The Appellant,
  2.    The Respondent,
  3.    The C.I.T. ­ 7, Mumbai
  4.    CIT (A) ­ 13, Mumbai.
  5.    The DR,       - Bench, ITAT, Mumbai

                   //True Copy//
                                                     BY ORDER

                                              ASSISTANT REGISTRAR
                                          ITAT, Mumbai Benches, Mumbai
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