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Income Tax Appellate Tribunal, KOLKATA BENCH ‘A’, KOLKATA
Before: Dr. Manish Borad & Shri Sonjoy Sarma]
ORDER
Per Sonjoy Sarma, JM:
This appeal of the assessee for the assessment year 2012-13 is directed against the order dated 11.01.2023 passed by the ld. Commissioner of Income-tax Appeals, NFAC, Delhi [hereinafter referred to as ‘the ld. CIT(A)’]. The assessee has raised the following grounds of appeal:
“1. The ld. Income Tax Officer has added Rs. 26,16,566/- being unsecured loan outstanding as on 31.03.2012 in my accounts. Out of the above loan Rs. 15,06,650/- was brought forward from earlier year. During the year under consideration only Rs. 11,09,916/- taken. Out of the above said loans, Rs. 3,00,000/- was taken from my husband and Rs. 8,00,000/- was taken from a private limited company.
2. The order of the ld. Commissioner(A), NFAC, Delhi confirmed the addition of Rs. 26,16,566/- of unsecured loan u/s 68 of the IT act made by the Income Tax Office in computing the income from other sources of the appellant is contrary to law and facts of the case & without providing sufficient opportunity to proof the genuineness and creditworthiness of the unsecured loans and without considering the fact that a major amount of loan was taken in earlier years and was not related to year under consideration.
Ratna Mitra 3. The appellant craves leave to add or amend any ground of appeal.”
2. The assessee has also raised following additional grounds of appeal:
“1. For that the facts and circumstances of the case the notice u/s 148 of the Income Tax Act, 1961 was without jurisdiction and bad in law and hence the entire assessment order is bad in law and the same should be quashed.
For that the sanction u/s 151 of the Income Tax Act 1961 before the reopening of assessment u/s 148 of the IT Act 1961 was mechanical and without application of proper mind and the sanction was bad in law and hence the reopening be held to be bad in law.”
At the outset, ld. AR raise the legal issue submitted that the instant notice issued u/s 148 of the Act without jurisdiction and bad in law. Therefore, the entire assessment order framed by the AO is bad in law and it should be quashed. Further he contended that sanction obtained u/s 151 of the Act before reopening of assessment order u/s 148 was mechanical and without application of proper mind. Due to this reason, the reopening is bad in law and need to be quashed. The ld counsel to substantiate his claim, he placed a copy of affidavit dated 16.05.2023 which was duly signed by the assessee stating that despite several visit and request made by the assessee to the assessing officer, the copy of reason recorded and approval of order u/s 151 of the IT act was not provided to the assessee. In such situation, the impugned order passed by the ld. CIT(A) and the assessment order passed u/s 143(3) r.w.s. 147 of the Act needed to be set aside by this Hon’ble Tribunal. On the other hand, ld. DR supported the decision rendered by the authorities below.
We after hearing the rival submission of the parties and perused the material available on record. We notice that the impugned order passed by the ld. CIT(A) is an ex-parte order without granting sufficient opportunity to the assessee and on perusal of the order of the ld. CIT(A), we find that fair opportunity were indeed given to the assessee for representation which was not complied by the assessee. However, keeping in view of the facts of the case and considering the legal issue raised by the assessee that the AO did not provide her copy of the reasons recorded and approval of the order u/s 151 of the Act obtained from the competent authority and the instant issue was never raised by the assessee before the ld. CIT(A). Therefore, we remand the whole issue in this appeal to the ld. CIT(A) to given more effective opportunity to the assessee. We also direct the assessee to co- operate with the ld. CIT(A) for expeditious disposal of the matter by not seeking any adjournment except due to exceptional or unavoidable circumstances. In view of the above discussion, the various issues raised by the assessee are left open and remand back to the file of ld. CIT(A) for de novo adjudication.
In the result, the appeal of the assessee is allowed for statistical purposes.