JUBEDABEN MAHEBUBBHAI MOMIN,AHMEDABAD vs. THE ITO, WARD-3(1)(1), AHMEDABAD

The Assessee has raised the following grounds of Appeal: -

1 The revised grounds of appeal are as under:

During the course of proceedings before the Tribunal, the assessee has also filed an application for admission of modified and amplified additional ground of appeal which read as follows:-

By virtue of the Ground of Appeal No. 3 as raised in Form 36, the appellant, in her submission filed before your Honour, challenged the validity of the notice issued u/s 148 of the Act on following reasons: Reason 1: The notice u/s 148 of the Act is digitally signed on 01-04-2022 (17:03 PM) and therefore, the same is issued beyond the period of six years for the purpose of first proviso to section 149(1)(b) and hence, the said notice is barred by limitation. Reason 2 The notice u/s 148A(b) of the Act dated 19-03-2022 was never served on the appellant and therefore, the mandatory opportunity to be heard under that provision prior to issuing of notice u/s 148 of the Act was never accorded to appellant. Notice issued u/s 148 of the Act in such a manner is invalid in law. Reason 3: (i) Having regard to the actual share of appellant in the purchased property as well as duplication of information with the department which has duly been accepted by the Ld. AO in the Assessment Order, the income escaped for the year under consideration cannot be said to amount to or exceed Rs. 50,00,000/- and therefore, the notice issued u/s 148 of the Act beyond the period of 3 years is barred by limitation. (ii) Notice u/s 148 has been mechanically issued.

The Ld. AR, appearing for the assessee, submitted that the additional ground is purely legal in nature, goes to the root of the validity of the assessment proceedings and does not require investigation into any fresh facts.

Heard both the parties on this issue and perused the material available on record.

Considering the application for admission of the additional ground. The Hon’ble Supreme Court in the case of National Thermal Power Co. Ltd. v. CIT, 229 ITR 383 (SC), has held that a question of law arising from the facts which are already on record can be raised before the Tribunal for the first time, provided its adjudication does not require investigation into fresh facts. In the present case, the additional ground challenges the very jurisdiction and validity of the reassessment proceedings. The facts relied upon by the assessee, including the dates and nature of notices issued during the reassessment proceedings and the authority from whom such notices were issued, are borne out from the assessment record. The issue sought to be raised is therefore a legal issue arising from the existing record. We, therefore, admit the modified and amplified additional ground for adjudication.

The brief facts of the case are that the appellant did not file a return of income for the year under consideration, as her total income did not exceed the basic exemption limit. Subsequently, proceedings under section 148 of the Act were initiated in her case on the basis of information alleging that she had purchased immovable properties, being lands situated at Survey No. 959, Sanand, Ahmedabad, vide Sale Deed Nos. 3740 and 3741, for a consideration of ₹1,52,25,120/- and had - 5– also made cash deposits of ₹4,00,000/- during the year under consideration.

1 During the course of proceedings under section 148 of the Act, the appellant submitted that she had not purchased the said properties for a consideration of ₹1,52,25,120/-. It was explained that the said amount represented duplication in the information available with the Department and that the actual purchase consideration was ₹76,12,560/-. It was further submitted that the appellant's share in the said properties was only 1/3rd and, accordingly, the actual consideration paid by her towards the purchase of the properties was ₹25,37,520/-. The appellant also explained the source and manner of payment of the said consideration. With regard to the cash deposits of ₹4,00,000/-, it was submitted that the same were out of agricultural activities carried out by the appellant.

2 The Assessing Officer accepted the appellant's contention regarding the duplication of the purchase consideration in the information available with the Department as well as her 1/3rd share in the properties. Accordingly, the Assessing Officer accepted that the appellant had paid purchase consideration of ₹25,37,520/- only. However, holding that the source of the said investment had not been satisfactorily explained, the Assessing Officer made an addition of ₹25,37,520/- towards unexplained investment and ₹1,24,339/- towards stamp duty, aggregating to ₹26,61,658/-, under section 69 of the Act. The assessment was completed under section 147 read with section 144 of the Act vide order dated 15.03.2023. Further, the explanation furnished - 6– by the appellant regarding the cash deposits of ₹4,00,000/- was not accepted and the same was also added to her income under section 69 of the Act.

Aggrieved by the aforesaid assessment order, the appellant preferred an appeal before the Ld. CIT(A). The Ld. CIT(A), however, dismissed the appeal for non-compliance by the appellant, as no response was received from her in response to the three notices issued during the appellate proceedings.

We have considered the rival submissions and perused the material available on record. The assessee has challenged the validity of the notice issued under section 148 of the Act on various grounds, including limitation, non-service of notice under section 148A(b), and failure to satisfy the monetary threshold prescribed under section 149(1)(b) of the Act. Since these matters need to be examined at the level of Assessing Officer based on the facts of the record of the Revenue, the appeal is set-aside to the file of Assessing Officer.

In the result, the appeal of the assessee is allowed for statistical purposes.

""थ"/ The Respondent. 3. संबंिधतआयकरआयु"/ Concerned CIT 4. आयकरआयु"(अपील) /The CIT(A)- 5. िवभागीय"ितिनिध, आयकरअपीलीयअिधकरण, अहमदाबाद/ DR, ITAT, Ahmedabad 6. गाड"फाईल /Guard file. आदेशानुसार/ BY ORDER,सहायकपंजीकार (Dy./Asstt.