MONIKA JAIN,JAIPUR vs. ITO, WARD-6(1), JAIPUR

4. That the appellant reserves his right to add, amend, alter or withdraw any ground of appeal on or before hearing of this appeal.

3. At the outset of hearing, the Bench observed that there is delay of 231 days in filing of the appeal by the assessee for which the ld. AR of the assessee filed an application for condonation of delay with following prayers:

“Monika Jain, the above-named assessee-appellant would like to submit that.

2. That the original assessment for the relevant year was passed ex-parte by ITO ward 6(1) on 14.12.2018 as the appellant could not & cannot participate in assessment proceeding owing to change of address from delhi to Jaipur Moreover, the Appeal was filed before CIT(A) and even application for admission of additional evidence was filed under rule 46A of Income tax Rules. The remand report in connection with the additional evidence was also received by the worthy CIT (A), NFAC 3. That the CIT(A) NFAC vide appellate order dated 25.10.2024, brushing aside the remand report, set aside the assessment to the file of Assessing officer by relying on amendment made in section 251 by Finance Act 2024 where in power to set aside was granted to Appellate Commissioner in cases completed u/s 144 of Monika Jain vs. ITO the Act. The order dated 25.10.2024 was duly served to the appellant on very same day on e-mail.

5. That the delay in filing Form 36 is solely due to lack of clarity over the new embedded provision in section 251. The appellant was under bona fide belief that due to recent amendment, it was obligatory for the CIT(A) to set aside cach & every case completed u/s 144 to file of AO and therefore appellant in distress, was waiting for initiation of set aside proceedings by the AO instead of approaching next Judicial Forum 6. That the factum of impugned set aside order was appealable before worthy ITAT came to the knowledge of the appellant only when the notice u/s 142(1) was issued from the NFAC, New Delhi Dated 20.06.2025 for making fresh assessment for relevant year and thereafter appellant contacted counsel, who updated the appellant on emerging jurisprudence on the matter. 7 That the delay in filing the form 36 is bona fide & unintentional and backed by reasonable cause. It is therefore, humbly prayed to kindly condone the delay of 233 days in filing Form 36 and allow admission of appeal and oblige.

4. During the course of hearing on delay part the ld. DR did not object to the contention raised by the assessee in her application for condonation of delay and prayed that Court may decide the issue as deem fit in the interest of justice.

Similarly, the assessee has not given any explanation as to why more turnover was shown in service tax return and why less turnover was declared in Income Tax return. The assessee has not submitted any single document, which could explain the difference in turnover in service tax return. 26AS and ITR. In online reply filed on 24.09.2017 in response notice u/s 143(2), the assessee submitted that "Whether sales turnover shown on net basis i.e. Broadcasting Income-Broadcasting Exp”. But despite order, the assessee did not furnish any document to substantiate its claim that in the ITR turnover has been shown after deduction of expenses. In absence of any plausible explanation, turnover declared in service tax return was taken as turnover of the assessee. Therefore, turnover of the assessee taken at Rs.5,88,29,322/- as declared in service tax return. Net profit of the assessee is assessed @ 8% of gross turnover of Rs.5,88,29,322/-, which comes to Rs.47,06,346/-. The assessee has already declared net profit of Rs.9,18,968/-. Hence the balance of Rs.37,87,378/- was added to business income of the assessee and therefore, ld. AO determined the total income of Rs. 46,16,928/- as against the return of income of Rs. 8,29,550/-.

7. Aggrieved from the order of Assessing Officer, assessee preferred an appeal before the ld. CIT(A), NFAC. Apropos to the grounds raised the relevant finding of the ld. CIT(A), NFAC is reiterated here in below:

9.1. Aggrieved by the above said order of the Assessing Officer, the appellant has filed the present appeal before CIT(A). During the course of appellate proceedings, notices u/s 250 have been issued on various dates. The written submissions filed by the appellant has been extracted in the preceding para. During the appellant proceedings remand report was also called for form the AO on account of additional evidences. The copy of the remand report has been extracted in the proceeding paras. The appellant has also taken the ground that the reasonable opportunity was not provided during the assessment proceedings.

9.2. Various judicial pronouncements have consistently held that the issue of giving opportunity and hearing to the appellant, is vital for the assessment of income arrived at by the Assessing Officer and the same has to be also used by the appellant by providing proper submissions and not only as a dilatory tactic so that the issue of not giving the proper opportunity should not be raised at a subsequent level.

9.3. It is worthwhile to point out that by Finance Act 2024, amendment has been made to section 251 wherein power of set-aside has been given to CIT(Appeals) for the assessments completed u/s, 144 of the Act, with effect from 01-10-2024. The relevant part of the amendment to section 251 is as under "Provided that where such appeal is against an order of assessment made under section 144, he may set aside the assessment and refer the case back to the Assessing Officer for making a fresh assessment;".

10. Considering the facts of the case and the assessment order completed u/s.144 being under-challenge in the present appeal and the observations made above with respect to the grounds of appeal challenging the merits of the addition, to meet the ends of justice, I find it fit to set-aside the assessment to the Assessing Officer and refer the case back to the Assessing Officer to complete the fresh assessment after giving proper opportunity and hearing to the appellant. The appellant is also directed to ensure that proper compliance and furnishing of the required documents, including the additional evidences filed during the appellate proceedings, is made during the set aside assessment proceedings before the Assessing Officer. However, no decision is being given on the merits of the case to cause any prejudice on the same. Subject to the above decision to set-aside the assessment as discussed above, all the grounds of appeal are hereby disposed off.

same was after considering the additional evidence filed by the assessee, thereafter the same was forwarded to the ld. AO and he filed the remand report thereupon. Doing this much exercise on the merits of the dispute the ld. CIT(A) should not have set aside the matter to the file of the ld. AO. Ld. AR of the assessee, having argued heavily relied upon the following finding so recorded in the remand report already placed on record. Thus, when the assessee moved the petition under rule 46A filed all the additional evidence and having admitted the said additional evidence the report of the AO needs to be given the logical conclusion. Thus, ld. AR heavily relied upon the content of the remand report which reads as follows :

From the perusal of assessment record of the above mentioned assessee, it is observed that the assessee has e-filed return of income declaring total income of Rs.8,29,550/- The case was selected under CASS for limited scrutiny. Accordingly, during the assessment proceedings the assessee was provided ample opportunities to furnish the details/documents related to the issue but, she chose not to appeal before the AO for the reasons best known to her only. Therefore, the AO had passed order u/s.144 on 14.12.2018 at total income of Rs.46,16,930/- by making addition of Rs.37,87,378/-. Hence, it is requested that the additional evidences now produced before your goodself may not be accepted.

However, without prejudice to the above, on examination of the copies of the P&L, Balance Sheet, service tax return and other details/documents.

Monika Jain vs. ITO submitted during the course of appellate proceedings, the assessee has furnished reasons of difference in total turnover declared in the ITR and turnover as per service tax return, which is seems to be acceptable. Hence, it is requested that additional evidences/documents submitted by the assessee may be considered.

As is clearly accepted by the ld. AO that the assessee has placed on record all the evidence and based on that the above finding is recorded and therefore, the addition of 8% of on alleged income at Rs. 37,87,378/- is required to be deleted because ld. AO has taxed the same income twice in the remand proceedings. The ld. DR did not dispute the turnover reported and reconciled by the assessee.

9. The ld DR relied upon the order of AO and ld. CIT(A). The ld. DR vehemently argued that the ld. CIT(A) has rightly set aside the assessment to the file of ld. AO.

The case was selected for Limited scrutiny under the CASS and statutory notices were issued. The assessee submitted reply online electronically in E-Proceedings facility through account in e-filing website of Income Tax income from broadcasting service. The assessee submitted online reply related to limited scrutiny issues which were examined. The assessee was asked to submit to submit necessary documents and evidences for verification but the same has not been produced till date of completion of assessment and therefore, ld. AO passed exparte order. While doing so ld. AO noted that as per 26AS the assessee has received contract receipts u/s 194C and 194H amounting to Rs. 2,22,40,805/- and turnover as per service tax return was 5,88,29,322/- during FY 2015-16 but in the ITR the assessee has declared total turnover of Rs. 59,67,697/- only. The assessee was asked to explain the difference, but no reply was filed. The assessee did not submit any document regarding nature of receipts. She did not provide any explanation as to why turnover in income tax return was shown must less than the receipts as per 26AS on which TDS was deducted by the payer.

She also did not explain as to why more turnover was shown in service tax return and why less turnover was declared in Income Tax return. The assessee has not submitted any single document, which could explain the difference in turnover in service tax return. 26AS and ITR. In online reply filed on 24.09.2017 in response notice u/s 143(2), the assessee submitted that "Whether sales turnover shown on net basis i.e. Broadcasting Income- assessee as discussed in detail in the order, the assessee did not furnish any document to substantiate its claim that in the ITR turnover has been shown after deduction of expenses. In absence of any plausible explanation, turnover declared in service tax return was taken as turnover of the assessee. Therefore, turnover of the assessee was taken at Rs.5,88,29,322/- as declared in service tax return. Net profit of the assessee is assessed @ 8% of gross turnover of Rs.5,88,29,322/-, which comes to Rs.47,06,346/-. The assessee has already declared net profit of Rs.9,18,968/-. Hence the balance of Rs.37,87,378/- was added to business income of the assessee and therefore, ld. AO determined the total income of Rs. 46,16,928/- as against the return of income of Rs. 8,29,550/-.

When the matter carried before the ld. CIT(A), the assessee filed an application for additional evidence as per rule 46A of the Income Tax Rules.

Ld. CIT(A) having admitted send it to ld. AO for sending the report / comments based on this additional evidence filed by the assessee. The ld. AO in nutshell on the issue reported as under :

However, without prejudice to the above, on examination of the copies of the P&L, Balance Sheet, service tax return and other details/documents. submitted during the course of appellate proceedings, the assessee has furnished reasons of difference in total turnover declared in the ITR and turnover as per service tax return, which is seems to be acceptable. Hence, Thus, when the ld. AO categorically accepted the additional evidence and has verified the alleged dispute regarding difference in turnover we do not see any reason to set aside the matter to the file of the ld. AO and therefore, we are of the considered view that the ld. CIT(A) ought to have decided the appeal directing the ld. AO to delete the addition but he set aside the same. Considering the overall facts placed on record and clear finding recorded by the ld. AO in the remand proceeding we see no reason to support the view of the ld. CIT(A) and therefore, we direct the ld. AO to delete the impugned addition made while passing the order.

In the result the appeal of the assessee is allowed.

Order pronounced in the open court on 12/11/2025.

Sd/- Sd/- ¼ Mk0 ,l- lhrky{eh ½ ¼ jkBksM deys'k t;UrHkkbZ ½ (Dr. S. Seethalakshmi) (Rathod Kamlesh Jayantbhai) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 12/11/2025 *Ganesh Kumar, Sr. PS Monika Jain vs. ITO आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. The Appellant- Monika Jain, New Delhi 2. izR;FkhZ@ The Respondent- ITO, Ward 6(1), Jaipur 3. vk;dj vk;qDr@ The ld CIT 4. vk;dj vk;qDr¼vihy½@The ld CIT(A) 5. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत xkMZ QkbZy@ Guard File (ITA No. 1147/JP/2025) 6. vkns'kkuqlkj@ By order,

सहायक पंजीकार@Aेेज. त्महपेजतंत