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Late Shri Jugal Kishore Agarwal,182, Deluxe House, Mody Street, Fort, Mumbai-02 ITO 2(1)(2) Mumbai.
September, 18th 2012
                              MUMBAI BENCH `J' BENCH


                            ITA Nos.6878 & 6880/Mum/2011
                         Assessment Years: 2005-06 & 2006-07

Late Shri Jugal Kishore Agarwal,                ITO 2(1)(2),
182, Deluxe House, Mody Street,                 Mumbai.
Fort, Mumbai-02
PA No.AAKPA 9269 P
(Appellant)                                     (Respondent)

                              Appellant by : Shri Vipul Joshi/Alpana Redij
                              Respondent by: Shri N.K.Mehta

Date of hearing:                  10.9.2012
Date of pronouncement:             14 .9.2012


Per I.P.Bansal, JM:

       Both these appeals are filed by the assessee. They are directed against two
separate exparte orders dated 16.8.2011 passed by ld CIT(A) for assessment years
2005-06 and 2006-07, respectively.

2.     The main grievance of the assessee in the present appeals against exparte
orders passed by ld CIT(A) is that appeals have been decided by ld CIT(A) against
principle of natural justice without affording proper, effective and sufficient opportunity
of being heard to the assessee.

3.     Against this ground, it is the request of the assessee that appeals be restored
back to ld CIT(A) for fresh adjudication. Without prejudice to above, assessee has also
assailed the assessments on the ground of invalid initiation of reassessment proceedings
and also the additions made which have been sustained by ld CIT(A). On the issue
whether there is lack of proper, effective and sufficient opportunity of hearing, as
assessee has been contending, both the parties were heard and it will be relevant to
reproduce ground taken before us with regard to this issue as under:
                                            2                      ITA Nos.6878 & 6880/Mum/2011
                                                              Assessment Years: 2005-06 & 2006-07

       "The ld CIT(A) erred in passing the order exparte without affording proper,
       effective and sufficient opportunity of being heard to the appellant."

4.     We have heard both parties on this issue and we found that there is lack of
effective opportunity of hearing provided to the assessee by ld CIT(A).                   While
proceeding to decide the appeals filed by assessee exparte, the observation of ld CIT(A)
in both the orders are as under:
       "The present appeal is against the order u/s.143(3) r.w.s. 147 of the Income tax
       Act, dated 9.12.2010. The appeal of the assessee was fixed for hearing for
       9.8.2011 by issue of proper notice which was sent by speed post, Sr. No.174
       dt.4.7.2011, at the address given by the assessee in Form No.35 but none
       attended. Therefore, the appeal of the assessee is decided on the basis of the
       material available on the record. The grounds of appeal of the assessee are
       discussed and decided as under:"

5.     The aforementioned observation of ld CIT(A) does not convey that notice issued
by him was aso properly served upon the assessee. Moreover, only on the first notice
without ascertaining the fact of service, appeals of the assessee have been decided.
Therefore, we feel that there is lack of opportunity.      Accepting the request of the
assessee, we restore both the appeals to the file of ld CIT(A). To ensure compliance by
the assessee before ld CIT(A), we direct the assessee to appear before ld CIT(A) on
5.11.2012. The date was duly noted by ld A.R. and on the said date, ld CIT(A) will hear
the appeals by providing the assessee reasonable opportunity of hearing. The assessee
will be at liberty to palce any material on record to support his case as per provisions of
law. With these directions, we restore these appeals to the file of ld CIT(A). Since the
entire matter is restored back to ld CIT(A), we do not express any opinion on the merits
of other issues taken by the assessee in the present appeals, which will be re-
adjudicated by ld CIT(A) in the manner aforesaid.

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

       Pronounced in the open court on 14TH September, 2012

                   SD/-                                           SD/-
           (D.KARUNAKAR RAO)                                 (I.P.BANSAL)
            Accountant Member                               Judicial Member

Mumbai, Dated      14TH    September, 2012
                                       3                  ITA Nos.6878 & 6880/Mum/2011
                                                     Assessment Years: 2005-06 & 2006-07

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

//TRUE COPY//                                       BY ORDER

                                        ASSTT. REGISTRAR, ITAT, MUMBAI
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