Loading judgment…
Facts
The assessee filed an appeal against an order which was based on the mistaken premise that the assessee had withdrawn the appeal. The assessee had sought to withdraw an appeal for AY 2014-15, but this was inadvertently applied to AY 2018-19.
Held
The Tribunal noted that the CIT(A) had passed the order based on a mistaken fact. The Tribunal therefore remitted the appeal back to the CIT(A) for a fresh decision on merits after verifying the facts and providing an opportunity of being heard.
Key Issues
Whether the appeal was correctly withdrawn by the assessee, and whether the CIT(A) erred in dismissing the appeal on a mistaken fact without deciding the issues on merits.
Sections Cited
148, 68, 115BBE, 133(6), 234A, 234B, 234C, 271AAC, 271(1)AAC
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, “K(SMC
Before: SMT. BEENA PILLAI & SHRI RENU JAUHRI
Per: Smt. Beena Pillai, J.M.: The Present appeal filed by the assessee arises out of order dated 10/12/2024 passed by NFAC Delhi.
“1) In the facts and circumstances of the case and in law, the JAO erred in reopening the case under section 148 by overlooking the fact that a) Only FAO can issue notice after NFAC was introduced b) No verification was made c) Without granting opportunity of being heard d) No asset exceeding Rs 50 lac is found. e) Approval was mechanically granted Without prejudice to the above and alternatively, 2) In the facts and circumstances of the case and in law, the Assessing Officer erred in making addition of Rs 40,00,000/in respect of loan u/s 68 r ws 115BBE a) Only on the basis of third party statement b) Only on the basis of suspicion c) Without confronting statement recorded in the case of creditor d) Without issuing notice u/s 133(6) to the creditor e) Without allowing cross examination the said creditor f) Overlooking the fact that transactions are through banking channel g) Without making any verification of the loan repayment h) Disregarding all documents filed i) Without referring the matter to VU/TU 3) In the facts and circumstances of the case and in law, the Assessing Officer erred in charging interest u/s 234A, B and C and also initiating penalty u/s 271AAC. 4) In the facts and the circumstances of law, the Ld Commissioner of Income Tax(A) erred in dismissing the appeal only by holding that appeal for AY 18-19 is wrongly withdrawn by the Appellant instead of AY 2014-15. Relief Praved: The Appellant therefore prays follows, 1. To quash the reopening wrongly made under section 148 2. To delete the addition of loan amounting to Rs. 40,00,000/- 3. To delete interest charged u/s 234 A, B and C and initiation of penalty u/s 271(1)AAC.
To restore the Appeal to CIT[A] A.Y. 2018-19 K S Binani HUF General:- The Appellant reserve rights to add alter or delete any portion of this appeal before its conclusion. a. This appeal is filed in time b. A Detailed paper book along with case laws will be submitted at the time of hearing.”
At the outset, the Ld.AR submitted that, the assessee sought for DVSV 2024 for assessment year 2014-15. Copies of Form 1, 2, 3 & 4 for A.Y. 2014-15 is placed at page 35- 36 of the paper book. 2.1 He submitted that inadvertently, the said appeal for assessment year was also considered to be withdrawn by the Ld.CIT(A). He referred to the relevant para of the impugned order, scanned and reproduced as under:
“1. Hearing notice was issued on 1/05/2024. A letter was received from appellant on 09/12/2024 stating inter alia that " Dear sir/Madam, Please find attached herewith Form no.2 issued by Principal CIT-20 Mumbai under VSV-2024. I there for request you to treat this appeal as withdrawn. Kindly note the same, so that i can file the same with form no.3, to the office of Principal CIT-20 Mumbai. Thanking you, Your Faithfully. K.S. BINANI HUF Kamal Binani. Karta CC to: Principal CIT- 20 Mumbai.-Request to issue Form no.4."” 2.2 The Ld.AR submitted that the present appeal may be restored back to the Ld.CIT(A) for deciding the issues on merits.
We have perused the submissions advanced by both sides in light of records placed before us.
It is noted that the Ld.CIT(A) refers to letter dated 9/12/2024 filed by the assessee seeking to withdraw the appeal. It seems that the impugned order was passed by the Ld.CIT(A) on mistaken fact as the letter seeking withdrawal the appeal filed by 3.1 We therefore remit the appeal to the Ld.CIT(A) for necessary verification of the above narrated facts by Ld.AR. In the event the submissions are found to be true, the Ld.CIT(A) is directed to pass a detailed order by considering the issues on merits based on the evidence filed by the assessee in accordance with law.
Needless to say the proper opportunity of being heard must be granted to the assessee.
In the result, the appeal filed by the assessee stands allowed for statistical purposes.
Order pronounced in the open court on 28/02/2025