NISHA FAZAL,GAUTAM BUDH NAGAR vs. ITO-4(3), KANPUR-01

Because, the ld. CIT (A), NFAC, has without consider the reply and submissions and passed the order stated with that the appellant has failed to reply and submissions, hence it is not correct and bad in law.

Because, the Notice issued u/s 148 dated 31/03/2019 that is last day of six years, but the service of notice is 14/05/2019, that is after expiry of six years and service of notice u/s 148 of IT Act,1961 is beyond the time lime limit than therefore, the reopening of case is invalid and bad in law.

Because, the reasons recorded by the ld. ITO-1(5) and obtained approval Pr. CIT-1, at Kanpur and issued notice u/s 148 dated 31/03/2019, and income tax department transferred the PAN juri iction is ITO-4(3), at Kanpur dated 19/08/2019, and ld. AO-4(3), initiate proceedings in same reasons to believe priorly and passed assessment order then therefore, assessment proceeding done by ld. ITO -4(3), without using our own mind and she is prejuris of the case hence therefore the entire assessment is nullity and bad in law.

Because, the ld. AO-1(5), has recording the reasons u/s 147 and issuing notice 148 of the Income Tax Act is without juri iction bad in law then therefore, have to be annulled.

Because, the necessary compliance having being made in response to notices issued u/s 142(1) there was no reason to exparte.

Because, the AO has failed to appreciate the facts and circumstances of the case and has arbitrarily made in addition of Rs.74,76,1 80/- is bad in law.

Because, the ld. AO has make a penalty u/s 271(1)(b) of IT Act,1961 after compliance done within time limit through official E-mail at kanpur.ito2.1.3@incometax.gov.in dated 25/11/2019 but she was not considered the same, then therefore is bad in law.

Because, the ld. AO knowingly issued notice u/s 142(1) of IT Act, and sending through speed post and fixing the hearing date is too short after knowing the appellant belongs to more than 400 K.M's, that is bad in law and could not give proper

Because, the ld. AO has erred the facts and in law in order passed by the AO is change of opinion hence therefore the addition made illegally.

Because, the notice u/s 1 48 of the Income Tax was not received by the appellant and assessment order passed by the ld. AO is invalid.”

The assessee has also filed revised/amended grounds of appeal, which are reproduced as under:

Because the notice under section 148 of the Income Tax Act, 1961, issued by ld. ITO-1(5), Kanpur with approval obtained from ld. Pr. CIT-1, Kanpur is without juri iction hence it is bad in law.

Because the notice under section 148 of the Income Tax Act, 1961, served dated 14.05.2019 that is after expiry of six years hence it is time barred hence whole assessment order passed based on this notice is annulled.

Because the assessment proceeding; order passed and made such demand by the ld. ITO-4(3), Kanpur based on reasons and notice under section 148 issued by ld. ITO-1(5), Kanpur is without juri iction and failure of application of mind and change of opinion hence therefore the entire assessment is nullity and bad in law.

Because the ld. AO, has failed to appreciate reply and submissions which was filed by the Appellant during the case proceeding and imposed penalty u/s 271(1)(b) of IT Act, 1961 passed the order is clear cut violation of settled principle of law and against the principle of natural justice.

Because the ld. AO issued notice u/s 142(1) in the correct address of the Appellant i.e. from Kanpur to Noida through speed post and fixing the hearing date is too short when she is very well known that the distance is more than 400 K.M's, that is bad in law and failed to give proper opportunity of being heard then therefore the order passed by ld. AO is not justified by law.”

1 As the assessee has filed revised/amended grounds of appeal, as per paragraph (2) of this order; the original grounds of appeal, as per paragraph (1) of this order, are not being considered.

This appeal has been filed by the assessee, beyond time limit prescribed under section 253(3) of IT Act. The assessee has submitted application, duly supported by affidavit, for condonation of delay in filing of the appeal; pleading that the delay was unintentional and beyond the control of the assessee and has requested to admit the appeal for hearing. The learned Sr. Departmental Representative for Revenue did not express any objection to assessee’s application for condonation of delay in filing of the appeal. In view of the foregoing, and in specific facts and circumstances of the present appeal before us, the delay in filing of this appeal is condoned; and the appeal is admitted for hearing.

The facts of the case, in brief, are that the assessee is an individual and retired from the post of Chief Manager from LIC. The Assessing Officer passed assessment order under section 144 read with section 147 of the I.T. Act on 05/12/2019 assessing the total income of the assessee at Rs.74,76,180/- and creating a demand of Rs.29,21,980/-. Being aggrieved, the assessee carried the matter in appeal before the learned CIT(A), who has confirmed the order passed by the Assessing Officer. Now the assessee is in appeal before the Income Tax Appellate Tribunal.

During the course of hearing, learned Counsel for the assessee filed detailed written submissions, which are reproduced below for the ease of reference:

That the present appeal is being filed inter-alia for challenging the Order dated 05.01.2024 passed by the ld. CIT(A) under Section 250 of the Income Tax Act, 1961, vide which appeal bearing no. CIT (A) Kanpur-2/10184/2019-20 filed by the Appellant was rejected and demand of Rs.29,21,980/- was upheld against the Appellant. A copy of order dated 05.01.2024 are already been annexed herewith asAnnexure No.3of the Index to Appeal.

That the Appellant is also challenging the order dated 05.12.2019 passed by the ld. ITO-4(3), Kanpur, under Section 144 r.w.s.147 of the Income Tax Act, 1961, vide which demand of Rs. 29,21,980/- has been confirmed against the Appellant. A copy of order dated 05.12.2019 arealready been annexed herewith as Annexure No.6 of the Index to Appeal.

That the Appellant is also challenging the Demand Notice in Form – 7, dated 05.12.2019 passed by the ld. ITO-4(3), Kanpur under section 156 of the Income Tax Act, 1961. A copy of demand notice dated 05.12.2019 are already been annexed herewith as Annexure No.7 of the Index to Appeal.

That the appellant is individualbearing PAN No. AACPF0740Q and she has retired in the post of Chief Manager from LIC of India. Her present/permanent residential addressat 6181, 8th Floor, Alok Vihar- II, F-6, Sector-50, Noida (U.P.) -201301. 5. That the Appellant is aware of her basic legal obligations, hence she has always been making necessary compliances with good intensions during assessment as well as first appeal proceedings and is ready to do so in future but even after her compliance, the first appellate authority has passed ex-parte order which is not fair in the eyes of law.

That the beginning of the disputes and till date the appellant is continuously facing mental and physical problems due to divorce form her husband and other personal issues, due to which she has not able to file income tax return during the year.

That the dispute arises due to sale of property situated at House No. 170, Block – E, 2nd Scheme, Sujatganj, Kanpur Nagar, Sale amount of Rs.35,00,000/- instead of Rs.83,93,860/- (Market Value), dated 30.01.2012, due to which that the ld. ITO-1(5), Kanpur has recorded the reasons and issued notice u/s 148 after obtained approval of ld. Pr. CIT-1, Kanpur. Copy of sale deed are annexed herewith as Annexure No. 10. 8. That the case was reopened and reason recorded by the Assessing Officer -1(5), Kanpurdated 25.03.2019 after obtained approval from Pr. CIT -1, Kanpur,and issued notice u/s 148 of the Income Tax Act, 1961 dated 31.03.2019 and notice u/s 148 was served in the old address of the appellantthrough affixture on 14.05.2019 i.e. expiry of the prescribed period of the Act.A copy of reasons dated 25.03.2019 and notice under section 148 of the Income Tax Act, dated 31.03.2019 are annexed herewith as Annexure No. 11& 12. 9. That the Appellant sifted NCR reasons after sale of property and her PAN juri iction have been transferred to NCR and changed ITR address from A.Y. 2013-14 to till date and same was shown in the filed ITR’s. Kindly see the filed ITR in the Assessment Year 2019-20 filed on 19.08.2019 in which the address and PAN juri iction of the Appellant is mentioned while the reasons and notice under section 148 has been issued by the ld. ITO-1(5), Kanpur dated on 25.03.2019 and 31.03.2019 respectively is without juri iction. Copy of ITR Acknowledgement for Assessment Year 2019-20 are annexed herewith as Annexure No.13.Copy of ITR Acknowledgement from Assessment Year 2013-14; 2014-15; 2015-16; 2016-17; 2017-18; 2018-19 and 2020-21 are annexed herewith as Annexure No.14. 10. That during the assessment proceeding council of the appellant requested in respect of service of notice u/s 148 of the Act, as to how the notice was served to the appellant and through which mode and documentary proof regarding the service of said notice but the ld. AO till date has not been able to produce any documentary evidence in this regard.A copy of the objection dated 15.10.2019 are annexed herewith as Annexure No.15. 11. That the ld. AO simply stated through letter dated 22.10.2019 that the said notice was send through speed post bearing tracking id EU933091264IN dated 31.03.2019 hence it is prescribed time as I.T.A. No.226/Lkw/2024 Assessment Year:2012-13 7

That the reasons for reopening recorded and notice under section 148 of the Income Tax Act, 1961 was issued by the ld. ITO – 1(5) and assessment order under section 144 / 147 of the Income Tax Act, 1961, which was passed by the ld. ITO – 4(3), Kanpur, is out of his / her juri iction, When the PAN juri iction was fall Ward – 1(2) Gautam Budh Nagar from Assessment Year 2014-15.Further in the assessment year 2019-20 when the notice under section 148 of the Income Tax Act, was issued, even then the Juri iction of this PAN was fall Ward 5(2)(3), Gautam Budh Nagar and address of the appellant was mentioned in her ITR at Gautam Budh Nagar till A.Y. 2020-21 and after that also, hence therefore all the assessment proceeding which was completed by the ld. ITO-1(5) and ITO – 4(3) Kanpur are annulled and whole assessment proceeding are without juri iction hence invalid. Further that the Assessment Year 2019-20, return of income tax was filed by the appellant dated 13.08.2019 i.e. after the date of reasons and notice u/s 148 of the Income Tax Act. Copy of ITR Acknowledgement for Assessment Year 2019-20 are annexed herewith as Annexure No.13.Copy of ITR Acknowledgement from Assessment Year 2013-14; 2014-15; 2015- 16; 2016-17; 2017-18; 2018-19 and 2020-21 are annexed herewith as Annexure No.14. I.T.A. No.226/Lkw/2024 Assessment Year:2012-13 8

That during the first appeal proceeding appellant has filed complete reply and submissions annexed with relevant annexures through official e-Mail of the ld. CIT (A) -2, at Kanpur dated 24.09.2020 and same has been informed to the ld. CIT (A) (NFAC), Delhi.But without considering the reply and submission of the Appellant passed the appeal order under section 250 of the Income Tax Act, dated 05.01.2024, stated that “In view of the above,considering the fact that the appellant hasfailed to produce any documentary evidence or explanation in support of the groundsof appeals,the action of the AO is upheld and the taxation of LTCG computed at Rs.70,92,161/- is confirmed. In the result, the appeal is treated as dismissed”. Hence it is therefore not justified by law. Screen shot of e-Mail; submissions and acknowledgement copy are annexed herewith as Annexure No.15 and A copy of order dated 05.01.2024 are already been annexed herewith as Annexure No.3of the Index to Appeal.

That during the assessment proceeding, council of the appellant has filed complete reply and submissions in compliance to notice under section 142(1) of the Income Tax Act, in time to time but ld. AO failed to give complete reply to the appellant query and failed to provide complete details of the reopening and juri iction details she has passed the best judgement assessment order dated 05.12.2019. A copy of assessment order dated 05.12.2019 arealready been annexed herewith as Annexure No.6 of the Index to Appeal.

That the case related to Assessment Year 2012-13 and the reasons on 25.03.2019 and notice under section 148 of the Income Tax was issued on 31.03.2019by the ld. ITO-1(5), Kanpur with prior approval from ld. Pr. CIT-1, Kanpur, and made assessment and passed the assessment order by ld. ITO-4(3), Kanpur that is worked with ld. Pr. CIT-2, Kanpur with internal letter of transferred of the case based on reasons and notice dated 25.03.2019 and 31.03.2019 hence if we look at the above process carefully, then we came to know that this is nothing but a change of opinion.

The ld. Assessing officer thereupon assessed the Total Income of the assessee at Rs.74,76,180/- vide order dated 05.12.2019 issued u/s 144 r.w.s. 147 of the Income Tax Act, 1961. 18. The appellant being aggrieved has come up before your Honour for relief as per Ground of Appeal in respect of which our submissions are as under:

The notice u/s 148 is beyond the time as prescribed by the Income Tax Act. 2. That the ld. AO has failed to provide documentary evidences regarding the service of notice u/s 148 of the Income Tax Act.

“Above assessee has sold of immovable property at Rs.35,00,000/- which is below circle rate for the year under consideration. Whereas the value adopted by Stamp Valuation Authority for the purpose of payment of Stamp Duty in this case was Rs.83,93,860/-. Due to absence of PAN, detail of the assessee and the business of the assessee could not be ascertained. 2. The department is in possession of information regarding sale of immovable property, which emanated from Sub-