NALINKANT SHYAMSHANKER PANDYA,VADODARA vs. THE ITO, WARD-1, GODHRA

“1. The Ld. Commissioner of Income Tax (Appeals), NFAC, has erred in law and in facts in setting aside the matter to the file of the Ld. A.O. for making fresh assessment without adjudicating the following technical and legal issues raised by the appellant before him: Nalinkant Shyamshanker Pandya vs. ITO Asst. Year : 2012-13 i The Ld. A.O. has erred in law and in facts in making the assessment without proper jurisdiction over the case of the appellant. The order so passed without having proper jurisdiction, is bad in law and is prayed to be deleted. ii Without prejudice to the other grounds of appeal, The Ld. A.O. has erred in law and in facts in passing the order which is time barred, as the order was dispatched on 03.01.2020 and served to the appellant on 06.01.2020. The order so made is bad in law and in facts is prayed to be deleted.

The Ld. CIT(A) NFAC ought to have adjudicated the above grounds on the basis of the submissions made by the appellant and the relevant case laws relied upon by the appellant and quashed the assessment order passed by the Ld. A.O. treating the same as illegal and bad in law instead of setting aside the matter to the Ld. A.O. It is prayed that the orders passed by the Ld. CIT(A) and the Ld. A.O. be treated as illegal and bad in law and are liable to be quashed.

2. Without prejudice to the above, the Ld. CIT(A), NFAC ought to have adjudicated the following grounds of appeal raised before him on merits based on the submissions/documents / evidences furnished during the course of appellate proceedings. i. Without prejudice to grounds the other grounds of appeal, the Ld. AO has erred in law and in facts in making the addition of Rs. 12,40,442/-. The same being bad in law and in facts is prayed to be deleted.

It is prayed that the order passed by the Ld. CIT(A), being bad in law, may please be set aside and he may be directed to adjudicate the above grounds on merits.

3. The appellant craves leave to add, amend, alter, edit, delete, modify or change all or any of the grounds of appeal at the time of or before the hearing of the appeal.”

5. The first ground taken by the assessee pertains to the jurisdiction of the AO. Shri Hemant Suthar, ld. AR of the assessee submitted that the assessment was made without proper jurisdiction. He explained that notice u/s.148 of the Act, in this case, was issued by the ITO, Ward-1, Godhra, who had no jurisdiction over the case as the assessee was residing in Vadodara. He submitted that since the ITO, Ward-1, Godhra did not have the jurisdiction over the case, the assessment order should be quashed. In this Nalinkant Shyamshanker Pandya vs. ITO Asst. Year : 2012-13 regard, he relied upon the decision of ITAT Delhi Bench in the case of Pushpa Gupta vs. ITO in dated 18/04/2024.

6. On the other hand, Ld. Sr. DR submitted that the assessee never filed his return of income and had participated in the proceeding initiated by ITO, Ward-1, Godhra. Further that, the assessee did not object to the jurisdiction of the AO during the course of assessment proceedings. Under the circumstances, the assessee was precluded from raising the ground of jurisdiction at this stage, in accordance with the provisions of section 124(3) of the Act.

7. We have considered the rival submissions. There is no dispute to the fact that the assessee didn’t file his return of income for AY 202-13. The assessee has also not brought on record any evidence showing that any return of income was filed by him for the earlier years, in a different jurisdiction. The PAN of the assessee was all alone in the jurisdiction of ITO, Ward-1, Godhra, which was on the basis of the address as mentioned by the assessee in the PAN application. Under the circumstances, we do not find any merit in the objection raised by the assessee in respect of jurisdiction of the AO. Neither the assessee has brought on record any evidence in respect of change of address nor the assessee has claimed that he had ever intimated the AO/ Department about any change in address. Further, the assessee had participated in the assessment proceedings and submitted his response to the show-cause notice issued by the AO. Having participated in the assessment proceedings, the assessee is now precluded from raising the objection about jurisdiction, in accordance with the provisions of section 124(3)(6) of the Act. The facts in the case of Pushpa Gupta (supra), relied upon by the assessee, is Nalinkant Shyamshanker Pandya vs. ITO Asst. Year : 2012-13 found to be totally different from the facts of the present case. Therefore, the ratio of said decision cannot be applied to the present case. Considering the peculiar facts of the case as discussed above, the decision of Ld. CIT(A) on this issue is upheld. The ground taken by the assessee on the issue of jurisdiction is dismissed.

8. The next ground pertains to addition of Rs.12,40,442/- in respect of deposit in the bank account. According to the assessee, the Ld. CIT(A) should have adjudicated this issue on merits rather than setting aside the matter to the file of the AO. It is found that the assessee had filed additional evidences before the Ld. CIT(A), which could not have been taken into account without providing an opportunity to the AO. Therefore, we do not find anything wrong with the order of the Ld. CIT(A) setting aside the matter to the file of the AO with a direction to consider the additional evidences of the assessee and thereafter re-adjudicate the matter. The direction of the Ld. CIT(A) setting aside the matter was in accordance with the power vested upon him under the provisions of section 251(1)(a) of the Act. Therefore, the order of the Ld. CIT(A) on this issue is upheld. The ground of the assessee is dismissed.