NILESH J. MEHTA, MUMBAI V. ITO 23(3)(1), MUMBAI

ITA 5817/MUM/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8143 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 28-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: POOJA SWAROOP
• Assessee Lawyers: SHREY SUSHIL JOSHI
• Keywords: Bogus purchase; Unexplained expenditure; Business expenditure; Opportunity of being heard; Principle of natural justice; Condonation of delay
• Section: 69C; 143(3); 147

Judgement Text

H IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI BEFORE SHRI C.N. PRASAD, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ./ I.T.A. NO.5817/ MUM/2016 ( / ASSESSMENT YEAR : 2009-10) NILESH J. MEHTA, PLOT NO. 24, BLOCK NO. 5, KRISHNA KUNJ BUILDING, OPP SHARKARI BHANDAR, BEHIND AURORA CINEMA, MATUNGA (E), MUMBAI 400 019. / V. ITO 23(3)(1), MUMBAI. ./ PAN : AABPM2056P ( / APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY : SHRI SHREY SUSHIL JOSHI REVENUE BY : MS. POOJA SWAROOP , DR / DATE OF HEARING : 01-03-2017 / DATE OF PRONOUNCEMENT : 14-03-2017 / O R D E R PER RAMIT KOCHAR, ACCOUNTANT MEMBER THIS APPEAL, FILED BY THE ASSESSEE, BEING ITA NO. 5817/MUM/2016, IS DIRECTED AGAINST THE APPELLATE ORDER DATED 26 TH MARCH, 2015 PASSED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS)- 40, M UMBAI (HEREINAFTER CALLED THE CIT(A)), FOR THE ASSESSMENT YEAR 2009- 10, THE APPELLATE PROCEEDINGS BEFORE THE LEARNED CIT(A) ARISING FROM THE ASSESSMENT ORDER DATED 28 TH DECEMBER, 2011 PASSED BY LEARNED ASSESSING OFFICER (HEREINAFTER CALLED THE AO ) U/S 143(3) OF THE INCOME-TAX ACT ,1961 (HEREINAFTER CALLED THE ACT). ITA 5817/MUM/2016 2 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN MEMO OF APPEAL FILED WITH THE INCOME-TAX APPELLATE TRIBUNAL, MUMBAI (HER EINAFTER CALLED THE TRIBUNAL) READ AS UNDER:- 1. IT IS HUMBLY SUBMITTED THAT AS PER PROVISIONS OF THE LAW AND THE FACTS AND CIRCUMSTANCES OF THE CASE THE HON'BLE CIT(A) -40 ERRED IN HOLDING THAT: 'SINCE THE REASSESSMENT ORDER RETAINS THE ADDITIONS MADE IN THE ORIGINAL ASSESSMENT, THE APPEAL FILED AGAINST THE ORI GINAL ASSESSMENT BECOMES INFRUCTUOUS' [PARA 4 OF THE ORDER DATED 26/03/ 2015 W.E.F. TO APPEAL NO: CIT(A)-40/ITO-23(3)(1) 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE HON' BLE CIT(A)- 40 ERRED BY DISALLOWING THE COMMISSION AMOUNT OF RS. 9, 75,132 PAID TO HIND CHEMICALS. OUR PRAYERS: 1. IT IS OUR HUMBLE PRAYER THAT THE COMMISSION OF RS. 9,75,132 PAID TO HIND CHEMICALS BE ALLOWED AS A DEDUCTION TO THE AS SESSEE. 2. WITHOUT PREJUDICE TO THE ABOVE, IT IS OUR PRAYER THAT THE FILE BE RESTORED TO THE HON'BLE CIT(A) WITH A DIRECTION TO VERI FY AND ADJUDICATE ON THE ISSUE OF COMMISSION OF RS. 9,75,132 PAID TO HI ND CHEMICALS. 3. THIS APPEAL HAS PECULIAR FACTS AND IS STATED TO BE FILED LATE BY 489 DAYS. THE ASSESSEE HAS FILED AN AFFIDAVIT DATED 27-02-201 7 WITH A REQUEST TO CONDONE THE DELAY EXPLAINING IN DETAILS REASONS FOR FILING THIS APPEAL. WE HAVE HEARD RIVAL CONTENTIONS ON CONDONATION OF DELAY , W HEREIN LEARNED COUNSEL FOR THE ASSESSEE HAS STRONGLY SUPPORTED CONDONATION OF DELAY OF 489 DAYS IN FILING THIS APPEAL LATE, WHILE LEARNED DR HAS STRONGLY OBJ ECTED TO CONDONATION OF DELAY. WE HAVE ALSO PERUSED THE MATERIAL ON RECORD INCLUDING CASE LAWS RELIED UPON. IN THIS CASE, ASSESSMENT WAS FRAMED U/S 143(3 ) OF 1961 ACT BY THE AO, VIDE ASSESSMENT ORDER DATED 28 TH DECEMBER, 2011, WHEREIN DISALLOWANCE OF COMMISSION EXPENSES OF RS. 9,75,132/- WAS MADE BY T HE AO ON THE GROUNDS OF BEING NON-GENUINE/EXCESSIVE EXPENDITURE AND ACCO RDINGLY ADDED TO THE ITA 5817/MUM/2016 3 RETURNED INCOME . THE ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A) BY FILING FIRST APPEAL AGAINST AFORESAID ADDITION OF RS. 9,75 ,132/- MADE IN ASSESSMENT ORDER DATED 28-12-2011 PASSED BY AO IN FIRST ROUND OF LITIGATION, WHICH APPEAL WAS FILED BEFORE LEARNED CIT(A) ON 01-02-201 2. IN THE MEANTIME, THE ASSESSMENT OF THE ASSESSEE WAS REOPENED BY THE AO U /S 147 OF THE ACT BY THE AO BY ISSUING NOTICE DATED 30.3.2014 BASED UPON THE INFORMATION RECEIVED BY THE AO FROM MAHARASHTRA SALES TAX DEPARTMENT THROUG H DGIT (INV). THE ASSESSEE HIMSELF REPRESENTED BEFORE THE LD. CIT(A) IN THE APPEAL PROCEEDINGS AS WELL DURING RE-ASSESSMENT PROCEEDINGS BEFORE THE AO WHICH FACT IS EMERGING FROM THE ORDERS OF THE AUTHORITIES BELOW , AS IT IS STATED AND AVERRED IN AFFIDAVIT DATED 27-02-2017 THAT THERE WERE SOME DISAGREEMENTS WITH HIS ERSTWHILE CA COUNSEL.. THE A.O. , IN THE MEANTIME PASSED AN ASSESSMENT ORDER DATED 26.02.2015 U/S 143(3) R.W.S. 147 OF THE ACT , WHEREIN ONLY ADDITION OF RS. 24,341/- WAS MADE U/S 69C OF 1961 A CT TOWARDS UNEXPLAINED EXPENDITURE W.R.T. BOGUS PURCHASES, HOWEVER , THE A SSESSED INCOME VIDE ASSESSMENT ORDER DATED 28-12-2011 PASSED U/S 143(3) OF 1961 ACT WAS CONSIDERED AND RETAINED IN RE-ASSESSMENT ORDER FOR FURTHER ENHANCING THE ADDITIONS AS WERE MADE IN RE-ASSESSMENT ORDER DATED 26-02-2015, WHILE NO SEPARATE ADDITION OF RS. 9,75,132/- TOWARDS DISALLO WANCE OF COMMISSION EXPENSES WERE MADE IN RE-ASSESSMENT ORDERS DATED 26 -02-2015 PASSED U/S 143(3) R.W.S. 147 OF 1961 ACT. THIS RE-ASSESSMENT ORDER WAS DULY FILED BEFORE LEARNED CIT(A) IN APPELLATE PROCEEDINGS AS IS EMERG ING FROM THE APPELLATE ORDER DATED 26-03-2015 PASSED BY LEARNED CIT(A) , W HICH APPEAL WAS FILED AGAINST ORIGINAL ASSESSMENT ORDER DATED 28-12-2011 PASSED BY THE AO U/S 143(3) OF 1961 ACT. AFTER RECEIPT OF THE ASSESSMEN T ORDER DATED 26-02-2015 U/S 143(3) R.W.S. 147 OF THE ACT, THE ASSESSEE FILE D FRESH APPEAL BEFORE THE LD.CIT(A) IN FORM NO. 35 DATED 31-03-2015 MISTAKENL Y CHALLENGING BOTH THE ASSESSMENT ORDER DATED 28-12-2011 PASSED BY THE AO U/S 143(3) OF 1961 ACT AS WELL RE-ASSESSMENT ORDER DATED 26-02-2015 PASSED BY THE AO U/S 143(3) R.W.S. 147 OF 1961 ACT ALTHOUGH CHALLENGE SHOULD HA VE BEEN AGAINST RE- ITA 5817/MUM/2016 4 ASSESSMENT ORDER DATED 26-02-2015 , WHICH FORM NO 3 5 DATED 31-03-2015 FILED WITH LEARNED CIT(A) ON 31-3-2015 ITSELF IS PL ACED IN PAPER BOOK PAGE 34 & 35 , WHEREBY THE ASSESSEE SOUGHT RELIEF OF RS. 9, 75,132/- TOWARDS COMMISSION PAID TO HIND CHEMICALS TO BE ALLOWED AS BUSINESS EXPENSES WHICH WAS ORIGINALLY DISALLOWED VIDE ASSESSMENT ORD ER DATED 28-02-2011 U/S 143(3) OF 1961 ACT , WHILE NO CHALLENGE WAS MADE IN THIS FRESH APPEAL FILED BEFORE LEARNED CIT(A) ON 31-03-2015 AGAINST THE ADD ITIONS OF RS. 24,341/- MADE U/S 69C OF 1961 ACT TOWARDS UNEXPLAINED EXPEND ITURE IN THE REASSESSMENT ORDER DATED 26-02-2015 PASSED U/S 143( 3) R.W.S. 147 OF 1961 ACT. THE ASSESSEE APPLIED FOR WITHDRAWAL OF THE FIR ST APPEAL BEFORE LEARNED CIT(A) WHICH APPEAL WAS FILED AGAINST THE ASSESSMEN T ORDER U/S 143(3) OF THE ACT ON THE GROUNDS THAT THE SAME ADDITION OF DISALL OWANCE TOWARDS COMMISSION EXPENSES OF RS. 9,75,132/- PAID TO HIN D CHEMICALS IS RETAINED IN THE RE-ASSESSMENT ORDER DATED 26-02-2015 PASSED BY THE AO U/S 143(3) R.W.S. 147 OF 1961 ACT WHILE PERUSAL OF THE RE-ASSE SSMENT ORDER DATED 26-02- 2015 REVEALS THAT NO SEPARATE ADDITIONS TOWARDS DIS ALLOWANCE OF COMMISSION EXPENSES OF RS. 9,75,132/- PAID TO HIND CHEMICALS W AS MADE BY THE AO IN THE SAID RE-ASSESSMENT ORDER WHICH ONLY RETAINED EN HANCED ASSESSED INCOME VIDE ORIGINAL ASSESSMENT ORDER DATED 28-12-2011 PAS SED BY THE AO U/S 143(3) OF 1961 ACT AS THE ADDITIONS TOWARDS DISALLO WANCE OF COMMISSION EXPENSES OF RS. 9,75,132/- PAID TO HIND CHEMICALS W AS MADE ONLY IN THE ORIGINAL ASSESSMENT ORDER DATED 28-12-2011 PASSED B Y THE AO U/S 143(3) OF 1961 ACT . BOTH THE ORIGINAL ASSESSMENT ORDER DATED 28-12-2011 PASSED U/S 143(3) OF 1961 ACT AS WELL RE-ASSESSMENT ORDER DATE D 26-02-2015 PASSED BY THE AO U/S 143(3) R.W.S. 147 OF 1961 ACT WERE BEFOR E LEARNED CIT(A). IT IS PERTINENT TO MENTION THAT THE ASSESSEE HIMSELF WAS REPRESENTING BEFORE LEARNED CIT(A) AS WELL BEFORE LEARNED AO IN RE-ASSE SSMENT PROCEEDINGS AS IS EMANATING FROM THE ORDERS OF THE AUTHORITIES BELOW AS WELL AS AVERRED IN AFFIDAVIT BY THE ASSESSEE. THE LEARNED CIT(A) VIDE APPELLATE ORDERS DATED 26- 03-2015 ALLOWED THE ASSESSEE TO WITHDRAW APPEAL AGA INST ORIGINAL ASSESSMENT ITA 5817/MUM/2016 5 ORDER DATED 28-12-2011 PASSED BY THE AO U/S 143(3) OF 1961 ACT BY HOLDING THAT THE APPEAL HAS BECOME INFRUCTUOUS WHICH APPE AL WAS, THEN, DISMISSED BY LEARNED CIT(A) , WHILE THE FACT OF THE MATTER IS THAT THE APPEAL FILED BY THE ASSESSEE BEFORE THE LEARNED CIT(A) AGAINST ASSESSME NT ORDER DATED 28-12- 2011 PASSED BY THE AO U/S 143(3) OF 1961 , DID NOT BECAME INFRUCTUOUS .THE APPELLATE ORDER DATED 26-03-2015 PASSED BY EARNED CIT(A) IS REPRODUCED HEREUNDER:- 4. DURING APPELLATE PROCEEDINGS, THE ASSESSEE SUBM ITTED THAT HIS CASE WAS RE-OPENED BY ISSUE OF NOTICE U/S.148 AND A N ORDER U/S.143(3) R.W.S. 147 DATED 26-02-2015 HAS BEEN PAS SED. A COPY OF THE RE-ASSESSMENT ORDER WAS SUBMITTED. IT WAS ST ATED THAT HE IS IN THE PROCESS OF FILING AN APPEAL AGAINST THIS RE-ASSESSMENT ORDER, WHICH INCORPORATES THE ADDITIONS MADE IN THE ORIGINAL ASSESSMENT ORDER. SINCE THE RE-ASSESSMENT ORDER RET AINS THE ADDITIONS MADE IN THE ORIGINAL ASSESSMENT, THE APPE AL FILED AGAINST THE ORIGINAL ASSESSMENT BECOMES INFRUCTUOUS AND THE ASSESSEE REQUESTED THAT WITHDRAWAL OF THE SAME MAY BE ALLOWED. 5. I HAVE CONSIDERED THE SUBMISSION OF THE APPELLAN T. FROM THE RE-ASSESSMENT ORDER DATED 26-02-2015, IT IS SEEN TH AT THE TOTAL INCOME HAS BEEN ASSESSED AT RS. 16,34,592/- WHICH I NCLUDES THE TOTAL INCOME ASSESSED U/S.143(3) DATED 28-12-2011 A T RS.16,10,251/- AND AN ADDITION OF RS.24,341/- HAS F URTHER BEEN MADE. THUS, THE ADDITIONS/DISALLOWANCES MADE IN THE ORIGINAL ASSESSMENT ORDER HAVE BEEN RETAINED IN THE RE-ASSES SMENT ORDER AGAINST WHICH THE ASSESSEE IS FILING AN APPEAL. THE PRESENT APPEAL, THEREFORE, BECOMES INFRUCTUOUS AND IS ALLOW ED TO BE WITHDRAWN. GROUNDS OF APPEAL ARE DISMISSED. THE ASSESSEE , THEREAFTER , FILED AN APPEAL BEFORE LEARNED CIT(A) ON 31-03- 2015 AGAINST THE RE-ASSESSMENT ORDER DATED 26-02-20 15 PASSED BY THE AO U/S 143(3) R.W.S. 147 OF THE ACT RAISING CHALLENGE TO THE ADDITIONS MADE TOWARDS DISALLOWANCE OF COMMISSION EXPENSES TO THE TUNE OF RS. 9,75,132/- WHICH ADDITION WAS MADE IN THE ORIGINAL ASSESSMENT ORDER DATED 28-12-2011 PASSED U/S 143(3) OF 1961 ACT WHILE NO SUCH DISALLO WANCE WAS MADE BY THE ITA 5817/MUM/2016 6 AO IN RE-ASSESSMENT ORDER DATED 26-02-2015 PASSED B Y THE AO U/S 143(3) R.W.S. 147 OF 1961 ACT, WHICH APPEAL WAS RIGHTLY DI SMISSED BY LD. CIT(A) VIDE APPELLATE ORDERS DATED 29 TH JULY, 2016 (PLACED IN PAPER BOOK/PAGE 39-41) BY HOLDING AS UNDER:- 5.2 I HAVE CONSIDERED THE SUBMISSION OF THE APPELL ATE AND PERUSED THE RECORDS. IT IS UNDISPUTED THAT THIS APP EAL HAS BEN FILED AGAINST ORDER PASSED U/S. 143(3) R.W.S. 147 D ATED 26.02.2015 . IT IS ALSO UNDISPUTED THAT THE ONLY AD DITION MADE IN THE ORDER AGAINST WHICH THIS APPEAL HAS BEEN FILED IS RS. 24,341/- ON ACCOUNT OF BOGUS PURCHASE , AND THE APPELLANT HA S NOT RAISED ANY GROUND AGAINST THE AFORESAID ADDITION. THEREFOR E IT CANNOT EB SAID THAT THE APPELLANT IS AGGRIEVED WITH THE ORDER PASSED U/S. 143(3) R.W.S. 147 DATED 26.02.2015. AS FAR AS DISAL LOWANCE OF COMMISSION OF RS.9,75,132/- AND ADDITION OF THE SAM E TO THE TOTAL INCOME IS CONCERNED, THE SAID DISALLOWANCE AN D ADDITION WAS MADE DURING A SEPARATE PROCEEDINGS, IN WHICH OR DER U/S 143(3) HAS BEEN PASSED BY THE AO ON 28.12.2011. THI S ORDER U/S 143(3) DATED 28.12.2011, WHEREIN THE COMMISSION PAY MENT HAS BEEN DISALLOWED AND ADDED, IS APPEALABLE ORDER IN I TSELF AND AFTER FILING OF APPEAL, THE APPELLANT HAS WITHDRAWN THE S AID APPEAL. SINCE, THE DISALLOWANCE OF COMMISSION IS NOT EMANAT ING FROM THE ORDER U/S 143(3) R. W.S. 147 DATED 26/02/2015, WHIC H IS IN BEFORE ME IN THE PRESENT APPEAL, THEREFORE IT CANNO T BE ADJUDICATED BY THE UNDERSIGNED AND IT CANNOT BE SAI D THAT THE APPELLANT IS AGGRIEVED WITH THE ORDER AGAINST WHICH THIS APPEAL HAS BEEN FILED. IN VIEW OF THE ABOVE THE APPEAL FIL ED IS DISMISSED.' THUS, IT IS THE CONTENTION OF THE ASSESSEE THAT TH E FIRST APPEAL BEFORE LEARNED CIT(A) AGAINST THE ASSESSMENT ORDER DATED 28-12-201 1 PASSED BY THE AO U/S 143(3) OF THE ACT WAS WITHDRAWN AND THAT TOO THE LE ARNED CIT(A) ADVISED HIM TO WITHDRAW THE SAID APPEAL IN VIEW OF RE-ASSESSMEN T ORDER PASSED BY THE AO U/S 143(3) R.W.S. 147 OF THE ACT. IT WAS SUBMITTED THAT THE ASSESSEE WAS REPRESENTING HIMSELF BEFORE LEARNED CIT(A) AND WAS NOT AWARE OF THE NUANCES OF 1961 ACT. IT WAS SUBMITTED THAT ALL APPEALS WERE FILED IN TIME AS EVEN THE PRESENT APPEAL BEFORE TRIBUNAL IS FILED WITHIN SIXT Y DAYS OF RECEIVING APPELLATE ORDER DATED 29-07-2016 PASSED BY LEARNED CIT(A) ALB EIT PASSED AGAINST RE- ITA 5817/MUM/2016 7 ASSESSMENT ORDER DATED 26-02-2015 U/S 143(3) R.W.S. 147 OF 1961 ACT, WHILE SINCE THIS APPEAL BEFORE THE TRIBUNAL IS AGAINST AP PELLATE ORDER DATED 26-03- 2015 PASSED BY LEARNED CIT(A) DISMISSING THE APPEAL AS INFRUCTUOUS BEING WITHDRAWN FOR WHICH CIRCUMSTANCES ARE HIGHLIGHTED A S MENTIONED ABOVE , AGAINST THE ORIGINAL ASSESSMENT ORDER DATED 28-12-2 011 PASSED BY AO U/S 143(3) OF THE ACT , AND HENCE THIS APPEAL BEFORE TR IBUNAL IS LATE BY 489 DAYS.THE ASSESSEE HAS AVERRED THAT THE ASSESSEE WAS BONAFIDELY AND DILIGENTLY PERSUING LEGAL REMEDIES BUT FOR HIS NOT KNOWING THE NUANCES OF 1961 ACT AS WELL THE WRONG ADVISE GIVEN BY LEARNED CIT(A) WHICH IS REFLECTED FROM PARA 5 OF LEARNED CIT(A) APPELLATE ORDER DATED 26-03-2015. THE ASSESSE RELIED UPON THE DECISION OF HONBLE SUPREME COURT IN THE CASE O F COLLECTOR, LAND ACQUISITION V. MST. KATIJI, 1987 TAXMANN.COM 1072 ( SC) / [1987] 66 STC 228 (SC). THE ASSESSEE HAS PRAYED THAT THE DELAY MAY B E CONDONED AS THERE WAS A SUFFICIENT CAUSE WHICH PREVENTED HIM FOR FILING T HIS APPEAL IN TIME BEFORE THE TRIBUNAL AND WHICH LED TO FILING OF THIS APPEAL BEF ORE TRIBUNAL LATE BY 489 DAYS. IN OUR CONSIDERED VIEW , THE ASSESSEE WAS DILIGENTL Y PERSUING THE LEGAL REMEDIES BONAFIDELY AND THE ASSESSEE HAS DISPLAYED SUFFICIENT CAUSE WHICH PREVENTED ASSESSEE FROM FILING THIS APPEAL IN TIME KEEPING IN VIEW PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE AND THIS DELAY OF 489 DAYS IN FILING APPEAL NEED TO BE CONDONED IN THE INTEREST OF JUSTICE. TH US, WE ORDER CONDONATION OF DELAY OF 489 DAYS IN FILING THIS APPEAL LATE BY THE ASSESSEE AND ADMIT THIS APPEAL TO BE ADJUDICATED ON MERITS. WE ORDER ACCORD INGLY. 4. NOW ON MERITS, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LD. CIT(A) IN HIS APPELLATE ORDER DATED 26 TH MARCH, 2015 IN THE APPEAL AGAINST THE ASSESSMENT ORDER DATED 28-12-2011 U/S 143(3) OF THE ACT HAD DISMISSED THE APPEAL BEING INFRUCTUOUS AND LD. CIT(A) HAS NOT DEA LT WITH THE ISSUES ON MERITS AND IF THE MATTER IS RESTORED TO THE FILE OF THE LD. CIT(A) , THEN IT CAN BE ADJUDICATED BY LEARNED CIT(A) ON MERITS AFTER CONSI DERING THE SUBMISSIONS OF THE ASSESSEE ON MERITS. THE LD DR SUPPORTED THE OR DERS OF AUTHORITIES BELOW . ITA 5817/MUM/2016 8 WE FIND SUBSTANCE IN THE CONTENTION OF THE LD. COUN SEL FOR THE ASSESSEE THAT ISSUE OF DISALLOWANCE OF RS. 9,75,132/- TOWARDS COM MISSION PAID BY THE ASSESSEE TO HIND CHEMICALS NEED ADJUDICATION ON MER ITS BY LEARNED CIT(A) AFTER CONSIDERING SUBMISSIONS OF THE ASSESSEE ON ME RITS, AS THE ISSUE WAS NOT ADJUDICATED BY LD CIT(A) ON MERITS IN FIRST APPEAL FILED BY THE ASSESSEE WHICH WAS DISMISSED IN LIMINE BEING INFRUCTUOUS . THEREFO RE, THE ISSUE UNDER THIS APPEAL IS SET ASIDE AND RESTORED TO THE FILE OF LEA RNED CIT(A) WHO SHALL ADJUDICATE THE APPEAL AFTER CONSIDERING THE SUBMISS IONS AND EVIDENCES FILED BY THE ASSESSEE IN HIS DEFENSE. THE ASSESSEE IS DIR ECTED TO APPEAR BEFORE LD. CIT(A) AND PRODUCE ALL EVIDENCES AND EXPLANATIONS I N SUPPORT OF HIS CONTENTIONS IN HIS DEFENSE. THE LD. CIT(A) SHALL GR ANT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH PRINCIPLES OF NATURAL JUSTICE IN ACCORDANCE WITH LAW , BEFORE DE-NOVO DETERMINATION OF THE ISSUE ON MERITS.WE ORDER ACCORDINGLY. 5. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IN I TA NO. 5817/MUM/2016 FOR ASSESSMENT YEAR 2009-10 IS ALLOWED FOR STATISTI CAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH MARCH, 2017. # $% &' 14-03-2017 ( ) SD/- SD/- (C.N. PRASAD) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER $ MUMBAI ; & DATED 14-03-2017 .9../ R.K. R.K. R.K. R.K. , EX. SR. PS ITA 5817/MUM/2016 9 !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. : ( ) / THE CIT(A)- CONCERNED, MUMBAI 4. : / CIT- CONCERNED, MUMBAI 5. =>( 99?@ , ?@ , $ / DR, ITAT, MUMBAI H BENCH 6. (BC D / GUARD FILE. / BY ORDER, = 9 //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , $ / ITAT, MUMBAI