SHOBHARAM TULSHIRAM PRAJAPAT,JALGAON vs. ITO, WARD 1(3), JALGAON, JALGAON

आदेश / ORDER

“1) On the facts and circumstances of the case and in law and without prejudice to other grounds, since the proceedings were initiated on the basis of information/documents related to assessee found during the course of search at third party, the notice issued by the AO under section 148 instead of Section 153C is bad in law and the resultant order under section 144 r.w.s. 147 is liable to be quashed. 2) On the facts and circumstances of the case and in law and without prejudice to other grounds, the assessment order passed by the AO u/s 147 r.w.s. 144 after considering the ITR and submissions filed by the assessee during the course of reassessment proceedings from time to time but without issue of mandatory notice u/s 143(2) of the Act is bad in law and liable to be quashed. 3) On the facts and circumstances of the case and in law and without prejudice to other grounds, the learned CIT(A), NFAC has erred in confirming the addition of Rs. 42,29,410/- made by AO u/s 69A of the act without adjudicating the grounds of appeal before him / without verifying the direct documentary evidences furnished by the appellant in support his claim. 4) The appellant craves the permission to add, amend, modify, alter, revise, substitute, delete any or all grounds of appeal, if deemed necessary at the time of hearing of the appeal.”

3. At the outset, ld. Counsel for the assessee submitted that Ground No.1 was specifically raised in Form No.35 and Ground No.2 raised as an additional ground in the written submissions filed before ld.CIT(A). He however fairly admitted that ld.CIT(A) has not given any filing on this legal issue. He also submitted that the legal issue raised in the instant case is covered by various decisions of this Tribunal which have been referred in the paper book running into 139 pages.

4. On the other hand, ld. Departmental Representative supported the order of ld.CIT(A).

5. I have heard the rival contentions and perused the record placed before me. I observe that the assessee is an individual and assessment for A.Y. 2015-16 concluded on 30.03.2022 u/s.147 r.w.s.144 r.w.s.144B of the Act after making addition of Rs.42,29,410/- for unexplained money u/s.69A of the Act. Assessee preferred appeal before ld.CIT(A) and the same was filed on 12.04.2022 and apart from others assessee has also raised legal issue challenging the validity of notice issued u/s.148 of the Act. Further, ld. Counsel for the assessee submitted that another legal issue was also raised that notice u/s.143(2) of the Act was not issued for carrying out the reassessment proceedings. I find that both these issues remained to be adjudicated by ld.CIT(A) and in the impugned order the finding of ld.CIT(A) reads as under :

“8. Decision

(i) I have gone through the material on record including the contents of assessment order, ground of appeal with statement of facts filed by the assessee.

(ii) On going through the submissions filed by the assessee I am of the considered opinion that the issues contained in the response of the assessee require extensive enquiries and verification which may not be possible with the machinery available at the level of Commissioner (Appeals). It would best serve in the interest of justice if the appellant gets another chance to represent his case before Ld. AO and thereupon Ld. AO can verify the submission of the assessee and conduct necessary enquiries to gather material for a true and correct estimation of income of the appellant. Directions for compliance by the Assessee as well as AO are being issued. (iii) As far as the grounds of appeal of the appellant are concerned, the matter requires extensive factual verification and hence the assessment order is set aside and the Assessing Officer is directed to make a fresh assessment after giving adequate opportunities to the appellant and complying with all extant rules and provisions and following principles of natural justice. The appellant may note that all necessary compliance should be made at the earliest and within the time limit prescribed in the notices issued by Ld AO. It should be the endeavor of the Appellant to promptly submit necessary evidences in support of his Income tax return, suo-moto or as required by the Assessing Officer without causing undue delays leading to submissions towards the fag end of the limitation period. The assessment order isset aside accordingly in accordance with proviso to S 251(1)(a) with a direction to the AO to make a fresh assessment in accordance with rules and timelines prescribed u/s 153(3) of the Act.

9. For Statistical purposes, the appeal is partly allowed.”

6. The issue of Tribunal’s power to adjudicate the ground raised before it in second appeal which did not pass through first appeal came for consideration before the Hon’ble Delhi High Court in the case of ‘Divine Infracon Pvt. Ltd. Vs PCIT’ [2025, 171 taxmann.com

92. (Del)], wherein their Hon’ble Lordship vide para 13 have categorically held that, the Tribunal has no jurisdiction to proceed to decide the ground which did not arise from the impugned order passed by first appellate authority, irrespective of such ground was raised in first appeal or not.