,   "-  " 
 IN THE INCOME TAX APPELLATE TRIBUNAL "SMC" BENCH, MUMBAI

        BEFORE S/SHRI B.R.BASKARAN,AM AND LALIT KUMAR, JM

                  ./I.T.A. No.3897/Mum/2015
                (   / Assessment Year :1987-88)

 Birendra M Shukla,              / Dy. Commissioner of Income Tax,
 5, Sarvodaya Nagar,                 CC-21,
                                 Vs.
 Datta Mandir Road,                  Aayakar Bhavan, Marine Lines,
 Malad (E),                          M K Road,
 Mumbai-400097                       Mumbai-400020.
       ( /Appellant)              ..    (    / Respondent)


            ./I.T.A. No.3898 and 3900/Mum/2015
        (   / Assessment Years :1988-89 and 1990-91)

 Birendra M Shukla,              / Asstt. Commissioner of Income
 5, Sarvodaya Nagar,                 Tax,
                                 Vs.
 Datta Mandir Road,                  Circle-21,
 Malad (E),                          Aayakar Bhavan, Marine Lines,
 Mumbai-400097                       M K Road,
                                     Mumbai-400020.
      ( /Appellant)              ..  (  / Respondent)


         . /   . /PAN/GIR No. :BLFPS5959F

           / Appellant by               Shri Rajesh S Shah
             /Rspondent by              Shri Airiju Jaikaran


            / Date of Hearing                : 18.8.2015
            /Date of Pronouncement: 18.8.2015

                               / O R D E R

Per Bench:

       All the appeals filed by the assessee are directed against the orders
passed by the ld. CIT(A)-51, Mumbai and they relate to the assessment
years 1987-88, 1988-89 and 1990-91.
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2.    The ld. Counsel appearing for the assessee submitted that the
assessment of all the assessment years under consideration were
completed under section 143(3) r.w.s 147 of the Act. The ld. Counsel
further submitted that the assessee had filed an additional ground before
the ld. CIT(A) questioning the validity of the re-opening of the assessment
of all the three years. He submitted that the ld. CIT (A), however, did not
adjudicate the said legal ground. He further submitted that the appeals
relating to the assessment years 1991-92 to 1994-95 are pending before
the ld. CIT (A) and in those years also, the assessee had questioned the
validity of the reopening of the assessments. He further submitted that
the assessments for all these six years have been re-opened on common
set of facts.   He submitted that the issue of validity of re-opening of
assessment goes to the root of the matter and accordingly prayed that the
same may be restored to the file of the ld.CIT(A) for its adjudication.

3.    The ld. DR also agreed to the request made by the ld. AR.

4.    Having regard to the submissions made by the ld. AR, we are of the
view that the legal issue relating to the validity of reopening of the
assessment should be restored to the file of the ld. CIT(A), since it goes to
the root of the matter and also for the reason that an identical issue is
pending before the ld. CIT(A) in other three years referred above, which
arise out of common set of facts. In view of the above, we prefer to set
aside the issues urged on merits also to the file of ld. CIT (A) for fresh
consideration. Accordingly, we set aside the orders passed by ld. CIT (A)
for all the three years under consideration and restore all the matters to
his file with a direction to adjudicate the legal issue and also other issues
urged on merits, afresh by affording adequate opportunity of being
hearing to the assessee.
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5.      In the result, all the three appeals of the assessee are treated as
allowed for statistical purposes.
             Pronounced accordingly on 18th August 2015.
                                         18th August, 2015    

       Sd                                                        sd
  (LALIT KUMAR)                                           ( B.R. BASKARAN)
 JUDICIAL MEMBER                                       ACCOUNTANT MEMBER
 Mumbai: 18th Aug, 2015.

. ../ SRL , Sr. PS

        /Copy of the Order forwarded to :
1.  / The Appellant
2.      / The Respondent.
3.     () / The CIT(A)- concerned
4.      / CIT concerned
5.      ,     ,  /
     DR, ITAT, Mumbai concerned
6.     / Guard file.

                                                                      / BY ORDER,

True copy
                                                           (Asstt. Registrar)
                                             ,   /ITAT, Mumbai