NINAD ARUN DIWAKAR,NASHIK vs. ITO, ACIT CIRCLE 1, NASHIK, NASHIK
आयकर अपीलीय अधिकरण ”ए” न्यायपीठ पुणेमें।
IN THE INCOME TAX APPELLATE TRIBUNAL
PUNE BENCHES “A” :: PUNE
BEFORE MS.ASTHA CHANDRA, JUDICIAL MEMBER
AND DR.DIPAK P. RIPOTE, ACCOUNTANT MEMBER
आयकर अपऩल सं. / ITA No.1318/PUN/2025
निर्धारण वषा / Assessment Year: 2022-23
Ninad Arun Diwakar,
Plot No.F-98, MIDC,
Satpur Nashik – 422007. V s
The Income Tax Officer,
ACTI Circle-1, Nashik.
PAN: AHEPD7516M
Appellant/ Assessee
Respondent / Revenue
Assessee by CA Sarang Gudhate
Revenue by Shri Ajay Kumar Keshari
Date of hearing
15/09/2025
Date of pronouncement 17/09/2025
आदेश/ ORDER
PER DR. DIPAK P. RIPOTE, AM:
This is an appeal filed by the assessee against the order of ld.Commissioner of Income Tax(Appeal)[NFAC], Delhi passed under section 250 of the Income Tax Act, 1961 dated 24.03.2025 for the A.Y.2022-23 emanating from the Assessment Order under section 143(3) of the Income Tax Act, 1961, dated 05.03.2024. The Assessee has raised the following grounds of appeal :
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“1. Under the facts and circumstances of the case and in law, Assessee is eligible for deduction of Rs. 7,97,15,590/- u/s 54F of the Income Tax
Act 1961. 2. Under the facts and circumstances of the case and in law, Ld. CIT(A) dismissed the Appeal without considering the data submitted along with the appeal memo.
Under the facts and circumstances of the case and in law, Ld. AO has disallowed of deduction of Rs. 7,97,15,590/- u/s 54F of the Income Tax Act 1961, without following the due procedure of Assessment.
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.”
Submission of ld.AR :
Ld.AR for the Assessee submitted that ld.CIT(A) has not adjudicated the grounds of appeal on merits. The ld.AR has submitted that Assessee has made elaborate submission including certain additional evidences. Ld.AR invited our attention to Form Number-35 filed by Assessee before ld.CIT(A) which contains confirmation Email from State Bank of India, copy of Capital Gain Account maintained with State Bank of India, copy of Capital Gain Account opening form, copy of withdrawal voucher. Ld.AR submitted that ld.CIT(A) has failed to consider these documents and ITA No.1318/PUN/2025 [A]
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merely dismissed the appeal. Ld.AR requested that ld.CIT(A) may be directed to verify the documents and decide the appeal on merits.
Submission of ld.DR :
Ld.DR for the Revenue gracefully accepted that ld.CIT(A) Order may be set-aside for denovo adjudication.
Findings & Analysis :
We have heard both the parties and perused the records. In this case, Assessee had filed Return of Income for A.Y.2022-23 on 20.09.2022 declaring total income at Rs.109,16,37,200/-. Assessing Officer has specifically mentioned Return of Income was filed under section 139(1) of the Act. The Assessee had claimed deduction u/s.54F of the Act. Assessee’s case was selected for scrutiny. During the assessment proceedings, Assessee submitted before Assessing Officer that Assessee had deposited Rs.8 crore in Capital Gain Account maintained with State Bank of India having “Account No.4110889xxxx” on 18.07.2022(The last four digits of the Account Number has been consciously marked as “xxxx”). The Assessing Officer wrote a letter u/s.133(6) of the Act to the State Bank of India to verify the Assessee’s claim. However, no response was received from State Bank of India. Accordingly, Assessing Officer
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disallowed Assessee’s claim of deduction u/s.54F(4) of the Act and made addition of Rs.7,97,15,590/-. Aggrieved by the Assessment
Order, Assessee filed appeal before the ld.CIT(A).
1 Ld.CIT(A) dismissed the appeal of the Assessee without discussing the merits of the grounds raised by the Assessee. The relevant paragraph 5.4, 5.5 and 5.6 of the ld.CIT(A)’s order are reproduced here as under : “5.4 It is now a well settled principles which find its expression in the latin maxim "Vigilantibus non dormientibus jura subveniunt". It means that the law assists those who are vigilant about their rights and not those sleep over their rights. This maxim and guiding principle have been affirmed and reaffirmed in various higher courts, including in the Supreme Court of India in innumerable cases. Clearly, the present case also falls squarely in that category as despite getting various opportunities to present his case, the appellant has failed to respond or to make any submission.
5 Thus, it is very clear form the above table that the appellant has chosen not to submit anything in support of his various grounds of appeal. In such a scenario, I am of the considered opinion that the appellant does not have anything to say or have anything to offer to the appellate authority in support of his various grounds of appeal, and thus, that the appellant does not want to press any of the grounds of appeal. In absence of any material, arguments or submission from the appellant, I am left with the documents and facts available on record to base my judgement. And these are primarily the assessment order passed by the AO. Accordingly, after due and careful consideration of ITA No.1318/PUN/2025 [A]
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the matter, I do not see any reason to interfere with the findings of the AO as enumerated in the assessment order.
6 1, therefore, dismiss all the grounds of appeal filed by the assessee.”
We have perused the Form No.35, filed under Rule 45 of the Income Tax Rules before Commissioner of Income Tax(Appeal). Form No.35 is the Form which assessee has to file before Commissioner of Income Tax(Appeal) for filing the appeal. Along with Form No.35, Assessee has also filed a statement of fact. In the Form No.35, list of documents attached with the Form No.35 is specifically mentioned. On perusal of the said Form No.35, it is observed that Assessee had filed following documents before ld.CIT(A). Confirmation Email from Manager, State Bank of India stating that no letter was received u/s.133(6) of the Act. Copy of Email from State Bank of India providing Capital Gain Account Opening Form. Copy of Email from State Bank of India providing withdrawal voucher as per procedure of Capital Gain Account. Capital Gain Account Statement. Copy of Capital Gain Account opening form obtained from State Bank of India.
The Assessee has raised the following grounds of appeal before ld.CIT(A) :
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“i) That on the facts and in the circumstances of the case and in Law the Ld.Assessing Officer has erred in disallowing the deduction of Rs.7,97,15,590/- out of the deposit of Rs. 8,00,00,000/- with State Bank of India Nilambar Circle Branch Account No. 41108893383 in Capital
Gains Account Scheme, 1988 as per Provision of the Section 54F (4) against the Long Term Capital Gain.
ii) That Ld. Assessing officer erred in law and on facts by holding that the Appellant has failed to discharge the onus of proving the genuineness of the deposit of amount in Capital Gain deposit scheme on account of non-confirmation from the State Bank of India in response to notice issued under Section 133(6) of the Income tax Act. 1961 ("the Act") and presuming arbitrarily Certificate issued by State Bank of India as Self-made without any contrary evidences on record iii) That Appellant had very much discharged his duty by providing
Certificate from the State Bank of India where in current address and current phone number email id was mentioned which has enabled the AO to issue notice u/s 133(6). But thereafter, non response by the State
Bank to the statutory notice directly issued by AO, is not within the reach and control of assessee. Hence, assessee cannot be punished for this by making addition for the grounds which are not under the control of the (iv) The Ld. Assessing Officer made addition without appreciating the facts and relevant evidences. The addition is made merely on basis of suspicion and surmise; hence appeal is being filed
(v) That, this order violates the principal of natural justice as the Assessing Officer should afford a reasonable opportunity and effective one so that the assessee may submit additional evidence in support of his claim
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(vi) That the appellant craves his right to right to add/amend/ alter ground of appeal at any time before the adjudication of the appeal.
(vii) That the relief prayed for may kindly be allowed and the order of the Assessing Officer may kindly be quashed, set aside, annulled, or modified.”
1 However, it is observed that ld.CIT(A) has not bothered to read the Form No.35, Statement of Facts and Documents enclosed. Ld.CIT(A) has merely stated that Assessee failed to comply the notices, without bothering to read the documents filed by the Assessee.
Ld.DR for the Revenue has not brought on record any contrary document to prove that Assessee had not filed above mentioned document.
The Hon’ble Bombay High Court has held in the case of Pr.CIT(Central) Vs. Premkumar Arjundas Luthra (HUF) (Bombay)/[2017] 297 CTR 614 (Bombay) as under : Quote, “8.From the aforesaid provisions, it is very clear once an appeal is preferred before the CIT(A), then in disposing of the appeal, he is obliged to make such further inquiry that he thinks fit or direct the Assessing Officer to make further inquiry and report the result of the same to him as found in Section 250(4) of the Act.
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Further Section 250(6) of the Act obliges the CIT(A) to dispose of an appeal in writing after stating the points for determination and then render a decision on each of the points which arise for consideration with reasons in support. Section 251(1)(a) and (b) of the Act provide that while disposing of appeal the CIT(A) would have the power to confirm, reduce, enhance or annul an assessment and/or penalty.
Besides Explanation to sub-section (2) of Section 251 of the Act also makes it clear that while considering the appeal, the CIT(A) would be entitled to consider and decide any issue arising in the proceedings before him in appeal filed for its consideration, even if the issue is not raised by the appellant in its appeal before the CIT(A). Thus once an assessee files an appeal under Section 246A of the Act, it is not open to him as of right to withdraw or not press the appeal. In fact the CIT(A) is obliged to dispose of the appeal on merits. In fact with effect from 1st
June, 2001 the power of the CIT(A) to set aside the order of the Assessing Officer and restore it to the Assessing Officer for passing a fresh order stands withdrawn.
Therefore, it would be noticed that the powers of the CIT(A) is coterminous with that of the Assessing Officer i.e. he can do all that Assessing Officer could do. Therefore just as it is not open to the Assessing Officer to not complete the assessment by allowing the assessee to withdraw its return of income, it is not open to the assessee in appeal to withdraw and/or the CIT(A) to dismiss the appeal on account of non-prosecution of the appeal by the assessee. This is amply clear from the Section 251(1)(a) and (b) and Explanation to Section 251(2) of the Act which requires the CIT(A) to apply his mind to all the issues which arise from the impugned order before him whether or not the same has been raised by the appellant before him. Accordingly, the law does not empower the CIT(A) to dismiss the appeal for non- prosecution as is evident from the provisions of the Act.” Unquote.
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8.1 Thus, the Hon’ble Bombay High Court has categorically held that ld.CIT(A) has to decide the appeal on merit and ld.CIT(A) does not have any power to dismiss appeal for non-prosecution.
In view of the above, in the interest of justice, we set-aside the order of the ld.CIT(A) to ld.CIT(A) for denovo adjudication. Ld.CIT(A) shall provide opportunity to the assessee. Assessee shall file all the necessary documents before the ld.CIT(A). Accordingly, grounds of appeal raised by the assessee are allowed for statistical purpose.
In the result, appeal of the assessee is allowed for statistical purpose. Order pronounced in the open Court on 17 September, 2025. MS.ASTHA CHANDRA
Dr.DIPAK P. RIPOTE
JUDICIAL MEMBER
ACCOUNTANT MEMBER
पपणे / Pune; ददिधंक / Dated : 17 Sep, 2025/ SGR
आदेशकीप्रनिनलनपअग्रेनषि / Copy of the Order forwarded to :
1. अपऩलधर्थी / The Appellant.
2. प्रत्यर्थी / The Respondent.
3. The CIT(A), concerned.
4. The Pr. CIT, concerned.
5. नवभधगऩयप्रनिनिनर्, आयकर अपऩलऩय अनर्करण, “ए” बेंच, पपणे / DR,
ITAT, “A” Bench, Pune.
गधर्ाफ़धइल / Guard File.
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आदेशधिपसधर / BY ORDER,
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Senior Private Secretary
आयकर अपऩलऩय अनर्करण, पपणे/ITAT, Pune.