HUSN BANO RAIS AHMED KHAN,MUMBAI vs. ITO WARD 23(1)(5), MUMBAI
What did the Tribunal hold?
The Tribunal held that the CIT(A) erred in dismissing the appeal in limine for delay, as the assessee's claim of receiving the assessment order on 22-01-2019 was plausible and not sufficiently rebutted by the Department. The case was remanded to the CIT(A) for fresh adjudication on merits.
What were the facts?
The assessee purchased a property in FY 2010-11 but did not file a return. The Assessing Officer reopened the case, made additions under Section 69, and disallowed Rs. 57,87,600. The assessee appealed to the CIT(A), who dismissed the appeal on grounds of delay.
What were the issues?
Whether the CIT(A) was justified in dismissing the appeal on grounds of delay without proper consideration of the service date of the assessment order and whether the case should be remanded for adjudication on merits.
Which sections of the Income-tax Act were involved?
Section 147,Section 148,Section 144,Section 69,Section 250,Section 249(2)
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, MUMBAI BENCH “E”, MUMBAI
Before: SHRI NARENDER KUMAR CHOUDHRY & SHRI PRABHASH SHANKAR
Per : Narender Kumar Choudhry, Judicial Member:
This appeal has been preferred by the Assessee against the order dated 26.11.2024, impugned herein, passed by the National Faceless Appeal Center (NFAC)/ Ld. Commissioner of Income Tax (Appeals) (in short Ld. Commissioner) u/s 250 of the Income Tax Act, 1961 (in short ‘the Act’) for the A.Y. 2011-12.
ITD system of the Department, it was revealed that during the F.Y.
2010-11, the Assessee had purchased a property, however, has not filed any return of income and therefore the Assessing officer reopened the case of the Assessee u/s 147 r.w.s 148 of the Act and vide assessment order dated 29.11.2018 u/s 144/147 of the Act has ultimately made the disallowance of Rs.57,87,600/- u/s 69 of the Act.
The Assessee, being aggrieved, challenged the said addition before the Ld. Commissioner, who vide impugned order affirmed the said addition by dismissing the appeal of the Assessee, on the ground of delay in filing of the appeal before him.
The Assessee, being aggrieved, is in appeal before this Tribunal.
The Ld. Advocate/AR Mr. Ajay Singh at the outset has submitted that as the impugned order was received by the Assessee only on 22-01-2019 and the Assessee filed first appeal on 16-02- 2019 and therefore there was no delay in filling of the same and thus in column no.14 of Form no. 35 which pertains to reason for delay on filling of appeal, the Assessee has clearly mentioned “NO”.
However, ignoring the said facts, the Ld. Commissioner dismissed the appeal of the Assessee in limine for the delay of 75 days, mainly by holding as under:
“That the Assessee has not explained as to how an order dated 29-12-2018 has been received on 22-01-2019. It may be construed that Assessee has intentionally not mentioned the fact of delay in filling of the appeal and has not filed any letter/affidavit to substantiate the reasons for not filling the appeal within the time limit allowed u/s 249(2) of the Act. It is clear that there is a delay of more than 75 days in filling of the appeal”.
On the other contrary, the Ld. D.R. vehemently submitted that there is no evidence on record that the assessment order has been served to the Assessee only on 22-01-2019 and therefore the impugned order cannot be faulted with.
Heard the parties and perused the material available on record.
The Assessee has claimed that the assessment order was served upon the Assessee only on 22-01-2019. Whereas the Ld. Commissioner held contrary. We observe that though the Department would have proved the service of the assessment order contrary but failed in doing so and therefore in the absence of any evidence contrary, no adverse presumption can be drawn against the Assessee qua service of assessment order prior to 22-01-2019, and therefore claim of the Assessee qua service of assessment order on 22-01-2019 cannot be sidelined, as claimed by the Ld. Counsel of the Assessee, which is plausible. Thus on the aforesaid reasons, the decision of the Ld. Commissioner in dismissing the appeal of the Assessee in limine, is set aside. owner of the property in the agreement involved has been mentioned by her late husband and admittedly entire payment has also been made by the late husband of the Assessee and the Assessee has not contributed even a single penny for purchase of such property. On the contrary the ld. DR refuterd the said claim of the Assessee. Considering the aforesaid facts and circumstances in totality, as the issue involved in this case remained to be adjudicated in its right perspective and proper manner and therefore without making any observation qua merits of the case and for just and proper decision of the case and for the ends of substantial justice, we are inclined to remand the instant case to the file of the Ld. Commissioner for decision afresh on merits, suffice to say by affording reasonable opportunity of being heard to the Assessee to substantiate her claim.
We also deem it appropriate to direct the Assessee to cooperate with the appellate proceedings and file the relevant submissions/documents, which would be essential and required by the Ld. Commissioner for proper adjudication of the case. We clarify that in case of default, the Assessee shall not be entitled for any leniency.
Thus, the impugned order is set aside and the case is remanded to the file of ld. Commissioner accordingly.
In the result, the appeal filed by the Assessee stands allowed for statistical purposes.
Order pronounced in the open court on 05.03.2025.
More judgments on Section 147
- ACIT Central Bilaspur, Bilaspur vs Arun Kumar Agrawal, SaktiITSSA 26/RPR/2025[2018-19]Status: Disposed21 Oct 2026AY 2018-19
- Vinod Agrawal, Kawardha vs Assisstant Commissioner of Income Tax…ITA 666/RPR/2026[2019-20]Status: Heard21 Oct 2026AY 2019-20
- Sar Business Tradelink Private Limited… vs Income Tax Officer, Ward - 1(2), RaipurITA 599/RPR/2026[2014-15]Status: Heard21 Oct 2026AY 2014-15
- Tarunaben Maganlal Bhut, Navagam vs ITO Ward 2(2)(1), RajkotITA 673/RJT/2026[2024-25]Status: Disposed21 Oct 2026AY 2024-25
- Neo Incorporation, Rajkot vs DCIT Circle- 1(2), RajkotITA 471/RJT/2026[2012-2013]Status: Disposed21 Oct 2026AY 2012-2013
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