MOHAMMED RAZA HASNAIN SHAIKH,BHIWANDI vs. INCOME TAX OFFICER WARD 34(2)(6) MUMBAI , BKC, MUMBAI

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “H (SMC)” MUMBAI

BEFORE SHRI OM PRAKASH KANT (ACCOUNTANT MEMBER) AND SHRI ANIKESH BANERJEE (JUDICIAL MEMBER)

ITA No. 1313/MUM/2026 Assessment Year: 2012-13

Mohammed Raza Hasnain ITO 34(2)(6), Shaikh, Kautilya Bhavan, Bandra East, Vs. 102, River View, B Wing, Millat Mumbai-421805. Nagar 2, Above Al Jabal Fast Food, Bhiwandi-421302. PAN NO. BJJPS 5818 K Appellant Respondent

Assessee by : Mr. Prashant Shinkar : Mr. Pravin Salunkhe, Sr. DR Revenue by

: 13/04/2026 Date of Hearing : 20/04/2026 Date of pronouncement ORDER PER OM PRAKASH KANT, AM

This appeal by the assessee is directed against order dated 09.12.2025 passed by the Ld. Commissioner of Income-tax (Appeals) – National Faceless Appeal Centre, Delhi [in short ‘the Ld. CIT(A)’] for assessment year 2012-13, raising following grounds:

“1. On the facts and in circumstances of the case and in the law, the order under section 250 of the I.T. Act, 1961, passed by Hon'ble Commissioner of Income-tax (Appeals) Is Invalid and bad in law.

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2.1 Briefly stated, facts of the case are that Briefly stated, facts of the case are that the assessee did not the assessee did not file a return of income for the year under consideration. Based on file a return of income for the year under consideration. Based on file a return of income for the year under consideration. Based on

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information information received received from from the the Dy. Dy. Director Director of of Income-tax Inc (Investigation), New Delhi (Investigation), New Delhi regarding alleged transactions regarding alleged transactions of Rs.25 lakhs in penny stock scrips in penny stock scrips of M/s Brila Pasific Medspa Ltd. of M/s Brila Pasific Medspa Ltd., the Assessing Officer recorded reasons to believe that income escaped Assessing Officer recorded reasons to believe that income escaped Assessing Officer recorded reasons to believe that income escaped assessment and initiated reassessment proceedings initiated reassessment proceedings initiated reassessment proceedings under section 147 by issuing notice under section 147 by issuing notice under section u/s 148 of the Income u/s 148 of the Income-tax, Act 1961 ( In short ‘the Act’) on 29.03.2019, which was duly served 1961 ( In short ‘the Act’) on 29.03.2019, which was duly served 1961 ( In short ‘the Act’) on 29.03.2019, which was duly served upon the assessee but no compliance was made on the part of the upon the assessee but no compliance was made on the part of the upon the assessee but no compliance was made on the part of the assessee.

2.2 Ultimately, the assessee filed Ultimately, the assessee filed return of income on 18.08.2019 return of income on 18.08.2019 declaring total income at Rs.68,343/ declaring total income at Rs.68,343/-. The assessee was issued . The assessee was issued subsequent notice u/s 142(1) of the Act dated 06.11.2019 but same subsequent notice u/s 142(1) of the Act dated 06.11.2019 but same subsequent notice u/s 142(1) of the Act dated 06.11.2019 but same also remain non-complied. The Assessing Officer further issued a complied. The Assessing Officer further issued a complied. The Assessing Officer further issued a final show cause notice dated final show cause notice dated 06.12.2019 fixing the compliance on 06.12.2019 fixing the compliance on 11.12.2019. In the absence of effective compliance by the assessee, In the absence of effective compliance by the assessee, In the absence of effective compliance by the assessee, the assessment was completed ex parte under section 144 of the the assessment was completed ex parte under section 144 of the the assessment was completed ex parte under section 144 of the Act on 26/12/2019, , after making addition of Rs.25 lakhs for receipt addition of Rs.25 lakhs for receipt on sale of said scrip under section 68 of the Act aid scrip under section 68 of the Act aid scrip under section 68 of the Act as unexplained cash credit and further addition for commission and further addition for commission paid at paid at the rate of 3% for obtaining such accommodation entry amounting to 3% for obtaining such accommodation entry amounting to 3% for obtaining such accommodation entry amounting to Rs.75,000/- was also made as unexplained expenditure u/s 69C of was also made as unexplained expenditure u/s 69C of was also made as unexplained expenditure u/s 69C of the Act.

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noted delay of 5 years and 7 month in filing the appeal before him. noted delay of 5 years and 7 month in filing the appeal before him. noted delay of 5 years and 7 month in filing the appeal before him. The Ld. CIT(A) further noted that certified copy of the assessment The Ld. CIT(A) further noted that certified copy of the assessment The Ld. CIT(A) further noted that certified copy of the assessment order was also not filed alongwith the prescribed form no. 35 for filed alongwith the prescribed form no. 35 for filed alongwith the prescribed form no. 35 for appeal . Before the Ld. CIT(A), the assessee submitted that during Before the Ld. CIT(A), the assessee submitted that during Before the Ld. CIT(A), the assessee submitted that during the period he was non the period he was non-resident and was not having any knowledge resident and was not having any knowledge of the notice issued or delay in submitting the appeal. The Learned of the notice issued or delay in submitting the appeal. of the notice issued or delay in submitting the appeal. CIT(A) dismissed the appeal CIT(A) dismissed the appeal in limine on two principal grounds( i) on two principal grounds( i) There was an inordinate delay of more than five years and seven There was an inordinate delay of more than five years and seven There was an inordinate delay of more than five years and seven months in filing the appeal; and (ii) The appeal was defective, as a months in filing the appeal; and (ii) The appeal was defective, as a months in filing the appeal; and (ii) The appeal was defective, as a copy of the assessment order was not furnished copy of the assessment order was not furnished along with Form along with Form No. 35. The Learned CIT(A), therefore, held the appeal to be non- No. 35. The Learned CIT(A), therefore, held the appeal to be non No. 35. The Learned CIT(A), therefore, held the appeal to be non maintainable and declined to admit the same for adjudication on maintainable and declined to admit the same for adjudication on maintainable and declined to admit the same for adjudication on merits. The relevant finding of ld CIT(A) is reproduced The relevant finding of ld CIT(A) is reproduced The relevant finding of ld CIT(A) is reproduced as under:

“4.4 From the above facts, it has been estab “4.4 From the above facts, it has been established that the lished that the appellant could not furnish the assessment order against appellant could not furnish the assessment order against appellant could not furnish the assessment order against which he has filed the appeal. Further, he has not explained which he has filed the appeal. Further, he has not explained which he has filed the appeal. Further, he has not explained the non-admission of delay in Form No. 35 and has briefly admission of delay in Form No. 35 and has briefly admission of delay in Form No. 35 and has briefly referred to the delay being on account of his being an NRI referred to the delay being on account of his being an NRI referred to the delay being on account of his being an NRI during the period under consideration. g the period under consideration. 4.5 In order to obtain copy of the assessment order, letters 4.5 In order to obtain copy of the assessment order, letters 4.5 In order to obtain copy of the assessment order, letters were sent to the AO on 15.10.2025 and 24.11.2025. However, were sent to the AO on 15.10.2025 and 24.11.2025. However, were sent to the AO on 15.10.2025 and 24.11.2025. However, no response has been received from the AO. no response has been received from the AO. 4.6 From the above facts and circumstances, it can be 4.6 From the above facts and circumstances, it can be 4.6 From the above facts and circumstances, it can be concluded that the appeal filed by the appellant suffers from concluded that the appeal filed by the appellant suffers from concluded that the appeal filed by the appellant suffers from non-curable defects on account of non curable defects on account of non-availability of the order availability of the order against which the appeal has been filed and also on being against which the appeal has been filed and also on being against which the appeal has been filed and also on being defective for not defective for not having admitted to the delay of more than 5 having admitted to the delay of more than 5 years and 7 months and for not explaining the reasons for years and 7 months and for not explaining the reasons for years and 7 months and for not explaining the reasons for such an inordinate delay. Therefore, the appeal is not such an inordinate delay. Therefore, the appeal is not such an inordinate delay. Therefore, the appeal is not maintainable and cannot be admitted for adjudication maintainable and cannot be admitted for adjudication maintainable and cannot be admitted for adjudication

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primarily in absence of the order against whic primarily in absence of the order against which the appeal h the appeal has been filed. The appellant was duty bound to upload/file has been filed. The appellant was duty bound to upload/file has been filed. The appellant was duty bound to upload/file the order against which he has filed the appeal so that the the order against which he has filed the appeal so that the the order against which he has filed the appeal so that the appellate authority can consider the facts and law through appellate authority can consider the facts and law through appellate authority can consider the facts and law through examination of the assessment order. Despite opportunities examination of the assessment order. Despite opportunities examination of the assessment order. Despite opportunities provided the appeal has remained defective and hence no ded the appeal has remained defective and hence no ded the appeal has remained defective and hence no purpose would be served by keeping such defective appeal purpose would be served by keeping such defective appeal purpose would be served by keeping such defective appeal pending. 4.7 In view of the above facts, the appeal is dismissed in 4.7 In view of the above facts, the appeal is dismissed in 4.7 In view of the above facts, the appeal is dismissed in limine as defective and time limine as defective and time- barred, without going into merits barred, without going into merits of the case.” 4. Aggrieved the assessee is in appeal challenging the finding of Aggrieved the assessee is in appeal challenging the finding of Aggrieved the assessee is in appeal challenging the finding of the Ld. CIT(A) in dismissing the appeal for delay and also ground the Ld. CIT(A) in dismissing the appeal for delay and also ground the Ld. CIT(A) in dismissing the appeal for delay and also ground seeking addition on the merit of the matter. seeking addition on the merit of the matter.

4.1 Before us, the assessee has filed an affidavit explaining that Before us, the assessee has filed an affidavit explaining that Before us, the assessee has filed an affidavit explaining that the assessment order was never served upon him. It has been t order was never served upon him. It has been t order was never served upon him. It has been contended that the assessee became aware of the assessment contended that the assessee became aware of the assessment contended that the assessee became aware of the assessment proceedings only upon initiation of recovery action, whereafter the proceedings only upon initiation of recovery action, whereafter proceedings only upon initiation of recovery action, whereafter assessee approached the Income assessee approached the Income-tax Department for providing a tax Department for providing a copy of the assessme copy of the assessment order but said copy was not provided and nt order but said copy was not provided and therefore, the delay occurred and the appeal was filed even without therefore, the delay occurred and the appeal was filed even without therefore, the delay occurred and the appeal was filed even without copy of the assessment order. copy of the assessment order.

4.2 It has further been pointed out that even the Learned CIT(A), It has further been pointed out that even the Learned CIT(A), It has further been pointed out that even the Learned CIT(A), despite issuing letters despite issuing letters on 15.10.2025 and 24.11. on 15.10.2025 and 24.11.2025 to the Assessing Officer, was unable to procure a copy of the assessment Assessing Officer, was unable to procure a copy of the assessment Assessing Officer, was unable to procure a copy of the assessment order, thereby corroborating the assessee’s claim regarding non- order, thereby corroborating the assessee’s claim regarding non order, thereby corroborating the assessee’s claim regarding non availability of the order. availability of the order. Accordingly, the Ld. counsel for the Accordingly, the Ld. counsel for the

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assessee submitted that delay in filing the appeal might be assessee submitted that delay in filing the appeal assessee submitted that delay in filing the appeal condoned and appeal might be admitted for adjudication on the condoned and appeal might be admitted for adjudication on the condoned and appeal might be admitted for adjudication on the merit. The assessee has now placed on record a copy of the The assessee has now placed on record a copy of the The assessee has now placed on record a copy of the assessment order obtained subsequent to the passing of the assessment order obtained subsequent to the passing of the assessment order obtained subsequent to the passing of the impugned order.

5.1 Insofar as the delay is concerned, the explanation furnished by delay is concerned, the explanation furnished by delay is concerned, the explanation furnished by the assessee supported by affidavit supported by affidavit of being non-resident during the resident during the relevant period which caused to the difficulty in obtaining the said relevant period which caused to the difficulty in obtaining the said relevant period which caused to the difficulty in obtaining the said copy and filing the appeal before the Ld. CIT(A) copy and filing the appeal before the Ld. CIT(A), indicates that the , indicates that the delay was occasioned due to non delay was occasioned due to non-service and consequent non service and consequent non- availability of the assessment order. This position finds support availability of the assessment order. This position finds support availability of the assessment order. This position finds support from the observations of the Learned CIT(A) himself, who has from the observations of the Learned CIT(A) himself, who has from the observations of the Learned CIT(A) himself, who has recorded that despite making efforts, the assessment order could recorded that despite making efforts, the assessment order could recorded that despite making efforts, the assessment order could not be obtained from the Assessing Officer. e obtained from the Assessing Officer.

5.2 In such circumstances, the delay cannot be attributed to any In such circumstances, the delay cannot be attributed to any In such circumstances, the delay cannot be attributed to any deliberate inaction or negligence on the part of the assessee. The deliberate inaction or negligence on the part of the assessee. The deliberate inaction or negligence on the part of the assessee. The assessee was clearly prevented by sufficient and reasonable cause assessee was clearly prevented by sufficient and reasonable cause assessee was clearly prevented by sufficient and reasonable cause from filing the appeal within the prescribed period. eal within the prescribed period. eal within the prescribed period. Further, the

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absence of the assessment order at the time of filing the appeal absence of the assessment order at the time of filing the appeal absence of the assessment order at the time of filing the appeal cannot be treated as a non cannot be treated as a non-curable defect in the peculiar facts of curable defect in the peculiar facts of the present case, especially when the same was not available the present case, especially when the same was not available the present case, especially when the same was not available despite due diligence and has since been obtained. T gence and has since been obtained. There is a gence and has since been obtained. T sufficient and reasonable cause for delay in filing the appeal. We are sufficient and reasonable cause for delay in filing the appeal. We are sufficient and reasonable cause for delay in filing the appeal. We are of the opinion that the appeal should not be rejected merely for of the opinion that the appeal should not be rejected merely for of the opinion that the appeal should not be rejected merely for such reasons. In view of the foregoing, we set aside the impugned In view of the foregoing, we set aside the impugned In view of the foregoing, we set aside the impugned order of the Learned CIT(A) and restore the matter to his file with f the Learned CIT(A) and restore the matter to his file with f the Learned CIT(A) and restore the matter to his file with the following directions: the following directions: (i) to consider afresh the application for to consider afresh the application for condonation of delay in light of the affidavit and material placed on condonation of delay in light of the affidavit and material placed on condonation of delay in light of the affidavit and material placed on record; (ii) to admit the appeal if satisfied with the e to admit the appeal if satisfied with the e to admit the appeal if satisfied with the explanation for delay; and (iii) thereafter adjudicate the issues on merits in thereafter adjudicate the issues on merits in thereafter adjudicate the issues on merits in accordance with law after affording adequate opportunity of being accordance with law after affording adequate opportunity of being accordance with law after affording adequate opportunity of being heard to the assessee. heard to the assessee. The ground Nos. 1 to 4 of the appeal of the . 1 to 4 of the appeal of the assessee are accordingly allowed for statistical purposes. Since the assessee are accordingly allowed for statistical purposes. assessee are accordingly allowed for statistical purposes. matter is being restored for fresh adjudication, the grounds raised matter is being restored for fresh adjudication, the grounds raised matter is being restored for fresh adjudication, the grounds raised on merits are not being adjudicated at this stage. on merits are not being adjudicated at this stage.

Order pronounced in the open Court on ounced in the open Court on 20/04/2026. /04/2026. Sd/- Sd/ Sd/- (ANIKESH BANERJEE) (ANIKESH BANERJEE (OM PRAKASH KANT OM PRAKASH KANT) JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER

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Mumbai; Dated: 20/04/2026 Rahul Sharma, Sr. P.S. Copy of the Order forwarded to Copy of the Order forwarded to : 1. The Appellant 2. The Respondent. 3. CIT 4. DR, ITAT, Mumbai 5. Guard file.

BY ORDER, BY ORDER, //True Copy// (Assistant Registrar) (Assistant Registrar) ITAT, Mumbai ITAT, Mumbai