LATE KIRAN KUMAR JAIN THROUGH L.H. SHRI ROHIT JAIN,KHANDWA vs. ITO - 1, KHANDWA, KHANDWA

Per Paresh M Joshi, J.M.:

This is an Appeal filed by the Assessee under section 253 of

the income tax Act 1961,[ herein after referred to as the Act

for the sake of brevity] before this tribunal as & by way of a

second appeal .The Assessee is aggrieved by the order

bearing No:-ITBA/NFAC/S/250/2025-26/1081295413(1)

dated 29.09.2025 passed by the Ld. CIT(A) u/s 250 of the

Act, which is herein after referred to as the “Impugned order”. The Relevant Assessment year is 2013-14 and the

corresponding previous year period is from 01.04.2012 to

31.03.2013.

2.1 That as and by way of an Assessment order made u/s

144 rws 254 of the Act, the total income of the Assessee was

computed & assessed at Rs. 38,04,500/-. Addition of Rs.

21,21,000/- was made as an unexplained investment u/s

69 of the Act. Addition of Rs. 4, 30,000/- was made as

Income from unexplained sources u/s 69A. Yet another

addition was made at Rs. 12, 53,500/- as Income from

unexplained sources u/s 68. The aforesaid assessment order

bears no: - ITBA/AST/S/144/2022-23/1051404449(1) and

that the same is dated 26.03.2023 which is hereinafter

referred to as the “impugned assessment order”.

2.2 That the Assessee being aggrieved by the aforesaid

“Impugned Assessment Order” prefers the first appeal u/s

246A of the Act before the Ld. CIT (A) who by the “Impugned

Order” has dismissed the first appeal of the Assessee on the grounds & reasons stated therein. The core grounds &

reasons for the dismissal of the first appeal were as under:-

“3. Statement of Facts filed by the Appellant are reproduced as under: The assessee was engaged in the brokerage of properties and he also had agricultural income. Shri Kiran Kumar Jain expired on 09.05.2019 due to cancer. Thal, earlier the assessment was passed ex-parte, which was remanded by the Honble ITAT. In the set-aside proceedings, the following notices u/s 142(1) was issued to the assessee on 01.09.2022, 29.12.2022, 23.01.2023, 02.02.2023 & 22.02.2023. Thereafter, the final show cause notice u/s. 144 was issued to the assessee on 13.03.2023. The assessee replied on 20.03.2023. The assessment was completed on 26.03.2023 with considering the reply in proper pursuit and Id. AO made the addition of Rs. 38,04,500/-, aggrieved against which the assessee is filing the present appeal.

4.1 The appeal was filed by the appellant on 05.04.2023 against the order u/s 144 r.w.s 254 of the Act. In connection to the appeal, opportunities were provided by CIT(A), NFAC to the appellant to substantiate his grounds of appeal on following dates:

Sr. Date on which No. hearing notices were 1 02.12.2024 2 16.12.2024 3 24.12.2024 4 11.02.2025 5 21.05.2025 6 20.08.2025

4.2 Against all these notices by CIT(A), NFAC, there was no response from the appellant. Form the above it is evident that the appellant is not interested in availing the opportunity under the principle of natural justice to file the response regarding the appeal filed. In such situation, the only conclusion which can be drawn is that the appellant is not interested in pursuing the appeal. xxxxxxxxxxx 4.4 This appeal has been filed by the appellant claiming that the action of the Assessing Officer is not supported by facts and laws and that it is unjust. In such a situation, it is for the appellant to furnish submissions with relevant evidence(s), case laws, if any, to support the claim. The 'burden of proof is always on the person who makes the claim. In this case, it is the appellant who has made the claim by filing the appeal. Thus, in cases where a particular receipt is sought to be taxed as income, the initial onus is on the Assessing Officer to prove that it is taxable. Where, however, the appellant claims exemption, the burden is on the appellant to prove it to be exempt. Same is the position in case of all allowances, deductions, claims or loss, etc. Since an appeal is nothing but the claim of the appellant that he has been unduly unjustifiably taxed, it is for the appellant to prove its case. The appellant has not availed any opportunity to do so. From the conduct of the appellant as per the facts noted above, it is clear that the appellant does not wish to pursue the appeal. 4.6 Hence, respectfully following the above mentioned judicial pronouncements and in view of the facts of the case, the grounds of appeal filed by the appellant is hereby dismissed. 5. In the end result, the appeal of the appellant is hereby dismissed.”

2.3 The Assessee being Aggrieved by the “Impugned Order”

has preferred the instant second appeal before this Tribunal and has raised the following grounds of appeal in the form

No. 36 against the “Impugned Order” which are as under:-

“1.The Id CIT(A) was not justified in ex-parte dismissing the appeal of the appellant, without deciding the appeal on merits, and that a fair and meaningful opportunity was not available to the appellant to present his case. 2.The Id CIT(A) was not justified in confirming the addition of Rs. 2 21,21,000/- on account of unexplained investment u/s 69 without considering the facts and circumstances of the case. 3.The Id CIT(A) was not justified in confirming the addition of Rs. 3 4,30,000/-on account of Income from unexplained sources u/s 69A without considering the facts and circumstances of the case. 4.The Id CIT(A) was not justified in confirming the addition of Rs. 4 12,53,500/-on account of Income from unexplained sources u/s 68 without considering the facts and circumstances of the case. 5.The appellant carves leave to add, amend OR modify any of the grounds of appeal.”

3.1 The hearing in the matter took place before this Tribunal

on 15.04.2026 when the Ld. AR for & on behalf of the

Assessee appeared before us & interalia contended that the

“Impugned Order” is bad in law, illegal & not Proper. It is

passed in the violation of the principles of natural justice. It

therefore deserves to be set aside.

3.2 The Ld. AR then invited our attention to the core findings

of the “Impugned Order” which we have already reproduced

aforesaid (supra). It was submitted that the “Impugned

Order” is an ex-parte one. It was briefly submitted that there was a survey u/s 133 of the act. An amount was

surrendered. After such surrender of the Income the

assessee expired the L/H are now in the picture [Para 7.1

of the Impugned Assessment Order]. The additions were

made and L/H provided the due assistance to the Dept. of

Income Tax. It was also submitted that the present round of

litigation is in fact the second round of litigation before

ITAT Indore. In the first round of litigation this tribunal had

remanded the matter back to the Ld. AO for fresh order. The

Assessment order in the first round of litigation was dated

23.03.2016 which too was u/s 144/147 of the act. The

assessee had not filed the return of income. The total income

exigible to tax was quantified at Rs. 38,04,500/- after

making the additions of Rs. 21,21,000/- [u/s 69], Rs.

4,30,000/-[u/s 69A], and Rs. 12,53,500/-[u/s 68]. Finally

the ITAT on second appeal by the assessee set aside the

matter and had remanded the case back to the Ld. AO. The

order of ITAT in ITA No.-153/Ind/2020 AY 2013-14 is dated

25.06.2021 and same is at pages 21 & 22 of the PB. [A

paper book containing pages 1 to 42 is placed on record]. It was fairly submitted that assessee died on 25.05.2019,

copy of death certificate is placed on page 29 of the PB. The

“Impugned Assessment Order” after the remand by ITAT is

dated 26.03.2023 which too was an ex-parte u/s 144 as no

full and complete details were available with L/H after the

death of the assessee who was in the business of brokerage

and agriculture. The order in the assessment was in

physical mode. In so far as the “Impugned Order” is

concerned which was before the Ld. CIT (A) faceless, the L/H

could not track the proceedings.

3.3 The Ld. DR for and on behalf of the Revenue contended

that this is a second round of litigation before the ITAT

Indore. There is a history of non-compliances since 2015

& 16 before the original assessment order dated

23.03.2016 was passed for AY 2013-14 which fact should

be noted by this tribunal. The legal heir ought to have

tracked the proceeding as the “Impugned Assessment

Order” is dated 26.03.2023 in the second round of litigation

and the Impugned Order is dated 29.09.2025 in the second

round of litigation. It was a case of survey. Documents are all on the record. Since the legal heir is involved so they were

too, in the second round as aforesaid, a strict direction with

cost is to be imposed on L/H for non-compliances as the

Dept. resources are heavily stressed. Per contra in the

rejoinder the Ld. AR submitted that the present L/H is

willing to cooperate fully if an opportunity is given to them

as and by way of last opportunity. In so far as imposition of

cost of Rs. 5000/- to be imposed on L/H Rohit Jain was

concerned we find that both the Ld. AR and the Ld. DR were

at ad idem on the cost aspect. The Ld. AR then suggested in

this case matter should go back to JAO instead of FAO. The

hearing was then concluded and closed.

4.1 We have to decide the legality, validity and proprietary of the

“impugned order” basis records of the case & the rival

submission canvassed before us.

4.2 We have carefully perused the records of the case and have

heard the submissions.

4.3 We basis records of the case & after hearing & further

upon examining the rival contentions of the Ld. AR & the Ld.

DR canvassed before us, are of the considered opinion that

both the orders of the lower authorities are not on merits

of the case. The assessee had died in the year 2019 the

legal heir is in the picture, they should cooperate with the

dept in the given circumstances. Hence we set aside the

“Impugned Order” as and by way of remand back to the file

of Ld. AO with cost of Rs. 5000/- to be paid by Rohit Jain

L/H of the assessee in favour of Income Tax Dept. After

showing the necessary proof in this regard of the cost the Ld.

AO is directed to take up the proceedings on De novo basis

and pass a suitable order on merits with a period of three

months from date of receipt of this order of the tribunal.

The assessee [L/H] to cooperate with the dept. be it noted

non-compliance by assessee [L/H] clogs the system and the

economy is affected.

4.4 In view of the above, we set aside the “Impugned Order”

and remand the case back to the file of Ld. AO on De novo

basis with direction as aforesaid including on cost.

5 Order

5.1 In the result “Impugned Order” is set aside as and by way

of remand back to the file of the Ld. AO on De novo basis with

timeline of three months as directed aforesaid to pass a fresh

order.

5.2 Appeal allowed for statistical purpose.

Pronounced in open court on 24.04.2026.

Sd/- Sd/-

(BHAGIRATH MAL BIYANI) (PARESH M JOSHI) ACCOUNTANT MEMBER JUDICIAL MEMBER

Indore Dated : 24/04/2026 Patel/Sr. PS Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order UE COPY Senior Private Secretary Income Tax Appellate Tribunal Indore Bench, Indore

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