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Income Tax Appellate Tribunal, MUMBAI “G” BENCH : MUMBAI
Before: SHRI VIKRAM SINGH YADAV & SHRI SANDEEP GOSAIN
Assessment Year : 2010-11 Satyajeet Gajendra Dali, Income Tax Officer, Flat 401, 4th Floor, Ward-19(3)(1), B Wing, vs. Piramal Chambers, 36 Babulnath Dadi Seth Road, Lalbaugh, Parel, Malbar Hill, Mumbai-400012. Mumbai-400006. PAN :AEXPD0970K (Appellant) (Respondent) Assessee by : Shri Meet Jimudiya Revenue by : Shri Swapnil Choudhary Date of Hearing : 29-07-2025 Date of Pronouncement : 30-07-2025 O R D E R PER VIKRAM SINGH YADAV, A.M : This is an appeal filed by the assessee against the order of the Learned Commissioner of Income Tax (Appeals)-National Faceless Appeal Centre (NFAC), Delhi [„Ld.CIT(A)‟], dated 06-01-2025, pertaining to Assessment Year (AY) 2010-11, wherein the assessee has taken the following grounds of appeal:
1. The Ld. Commissioner of Income Tax (A)-NFAC erred in law and/or on facts in passing a hurried Order (DIN: ITBA/NFAC/S/250/2024- 25/107907002(1)) u/s 250 Dated 06.01.2025 without (a) giving proper and reasonable opportunity of being heard, (b) without verifying facts and submissions made and (c) Video Conference opportunity.
2. The Ld. Commissioner of Income Tax (A)-NFAC erred in law and/or on facts in not applying principle of substance over legal form and simply dismissed based on conclusion that there is mismatch in facts without considering the legality of the said facts and thereby confirming the addition of Rs. 71,57,000/-,
The Ld.CIT(A)-NFAC erred in law and/or facts by confirming the addition made by Ld. Assessing officer who has simply stated in the para 5 of Assessment Order that “... Capital gain of Rs. 71,57,000/- made by the assessee during F.Y. 2009-10 pertaining to sale of Immovable property treated as undisclosed..." without establishing how capital gains tax to the extent of 71,57,000/- is applicable to the appellant & without considering any relevant factors such as bank receipts, cost of acquisition etc.
4. The Ld.CIT(A)-NFAC erred in law and/or on facts in dismissing the appeal and confirming the addition made by the assessing officer amounting to Rs. 71,57,000/- which is alternatively highly excessive apart from being arbitrary and unjust.
The Ld.CIT(A)-NFAC erred in law and/or on facts in dismissing the appeal, passing Order u/s 250 without considering the Appeal Submissions cum Application u/r 46A for admissibility of Additional Fresh Evidence Dated 05.12.2024. The said order too is not speaking order and very vague in nature. 6. The Ld.CIT(A)-NFAC erred in law and or facts in not considering that Out of 71,57,000/-, Rs. 38,82,000/- have already been considered under the head business Income and Transaction of Rs 30,00,000/- belongs to third party on whose behalf the appellant has executed documentation as holder of Attorney. 7. The Ld.CIT(A) -NFAC erred in law by not providing opportunity of VC hearing before dismissing appeal despite specific request raised during appeal proceedings. 8. The appellant craves to add, alter, amend, edit, and/or delete any or all of the above grounds of appeal
either in full or in part on or before the finalization of this appeal.”
2. During the course of hearing, the Ld.AR submitted that in this case, the assessment order was passed by the AO u/s. 144 r.w.s. 147 of the Income Tax Act, 1961 („the Act‟), vide order dt.06-12-2017. It was submitted that the case of the assessee was reopened, basis information that the assessee has sold certain immoveable property amounting to Rs. 71,57,000/- during the financial year relevant to the impugned assessment year. It was submitted that the assessment order has been passed u/s. 144 of the Act, as the assessee has since shifted from his original residence and the notices so issued by the AO were not received by the assessee and couldn‟t be responded to by the assessee. It was submitted that the assessee has sought particulars of information/documentation from the AO basis which the case of the assessee has been reopened, however, till date, no such information has been provided. It was further submitted that during the appellate proceedings, the assessee has made detailed submissions before the Ld.CIT(A) explaining the reasons for non-compliance before the AO and has also sought approval to file additional evidences under Rule 46A as available with the assessee in support of various business transactions undertaken by him and in that regard, has filed detailed written submissions dt. 04-12-2024 which are contained at page Nos. 31 to 48 of assessee‟s Paper Book. It was submitted that though the Ld.CIT(A) has taken cognizance of written submissions, however, has failed to record any findings in terms of the admittance of additional evidences so submitted by the assessee and further, no finding has been given on merits of the case. It was submitted that the additional evidences so sought to be submitted by the assessee are germane to the matter under consideration and given that the Ld.CIT(A) has failed to take the same into consideration, the matter may be remitted to the file of the Ld.CIT(A) to consider the additional evidences and to decide the matter afresh, after providing reasonable opportunity to the assessee.
3. Per contra, the Ld.DR is heard, who has not raised any specific objection where the matter is remitted to the file of the Ld.CIT(A).
We have heard the rival contentions and perused the material available on record. We find that it is a case of best judgement assessment passed u/s 144 of the Act where basis information that the assessee has sold certain immoveable property, the assessment has been completed, bringing whole of the sale consideration to tax. During the course of appellate proceedings, the assessee has moved an application for submission of additional evidences as part of his submissions dt. 04-12- 2024 before the Ld.CIT(A) and the necessary evidence in terms of filing of these submissions along with additional evidences have been duly placed on record. At the same time, we find that there is no specific finding recorded by the Ld.CIT(A) in terms of disposing off the said application so moved by the assessee under Rule 46A and as a result, such evidences have not been considered and the findings of the AO have been summarily affirmed by the Ld.CIT(A). Therefore, considering the facts and circumstances of the present case, we find that it is essential that necessary facts be thrashed out by bringing all evidences on record as available with the AO at the time of recording of the reasons and as so sought to be submitted by the assessee in order to bring to tax correct income as per law in the hands of the assessee. We accordingly deem it appropriate to set aside the impugned order to the file of the Ld. CIT(A) for calling the necessary information available with the AO, to consider the application moved by the assessee under Rule 46A and to decide the matter a fresh as per law by passing a speaking order after providing reasonable opportunity to the assessee.