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Facts
The assessee's appeal arises from an order of the CIT(A) which remanded the case back to the AO. The assessee was outside India during the assessment period and claimed that deposits in his bank account were fraudulent. The original assessment proceedings under Section 147 were initiated, but the notices were not properly served.
Held
The Tribunal held that the reassessment proceedings were void ab initio due to improper service of notice under Section 148. The Tribunal also found that the addition based on AIR data was unsustainable as the deposits were made fraudulently by a third party. Therefore, the appeal was allowed.
Key Issues
1. Whether reassessment proceedings initiated under Section 147 are valid if the notice under Section 148 is not properly served. 2. Whether an addition based on AIR data is sustainable when the assessee provides evidence of fraudulent third-party activity in their bank account.
Sections Cited
147, 148, 142(1), 144, 151, 250, 251, 69A, 190
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, JAIPUR BENCHES,”SMC” JAIPUR
Before: DR. S. SEETHALAKSHMI, JM & SHRI GAGAN GOYAL, AM vk;dj vihy la-@ITA No. 834/JPR/2025
vkns'k@ORDER PER: DR. S. SEETHALAKSHMI, J.M.
This is an appeal filed by the assessee against the order of ld. CIT (A), National Faceless Appeal Centre, (NFAC), Delhi dated 06.02.2025 passed under section 250 of the I.T. Act, 1961, for the assessment year 2009-10. 2. The assessee has raised the following grounds of appeal :-
1. Under the facts and circumstances of the case, learned CIT (A) erred in law and on facts in remanding the case to the Assessing Officer for fresh adjudication instead of deciding the matter on merits, despite all material facts and documentary evidence being available on record.
2. Under the facts and circumstances of the case, learned CIT (A) erred in law and on facts in confirming the proceedings initiated under section 147 which are invalid as the notice under section 148 was not properly served, Appellant was out of India during the relevant period thereby rendering the entire assessment process void ab initio.
3. Under the facts and circumstances of the case, learned CIT (A) was not justified while not considering the written submission made by appellant for addition of Rs. 37,64,400/- based on AIR transaction data is unsustainable as the cash deposits in the Vaishali Nagar Cooperative Bank account were fraudulently conducted by a third party, against whom legal action was taken by the appellant by way of filing FIR regarding unauthorized use of his bank account, which were crucial to the matter.
4. Under the facts and circumstances of the case, learned CIT (A) was not justified while not considering the written submission made by appellant for deletion of the demand of Rs. 31,64,116/- which is arbitrary, excessive, and contrary to the principles of natural justice and remanding back the case to AO for fresh adjudication.
5. Kindly stay the demand 6. Assessee craves to alter, modify, change grounds of appeal before hearing.”
3. We find that the appeal filed by the assessee is delayed by 21 days. The assessee has filed an application submitting therein the reasons for delay in filing the appeal and prayed for condonation of delay. In support of the application, the assessee has also filed an Affidavit duly sworn in before the Notary, Jaipur dated 21st May, 2025 for condonation of delay, which is being reproduced hereunder :-
BEFORE THE HON’BLE MEMBERS OF THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH JAIPUR. Affidavit for Condonation of Delay
I, Anil Kumar Meena, son of Shri Debu Ram Meena, aged about 56 years, residing at 12/391, Sector 12, Malviya Nagar, Jaipur – 302017, having PAN: ALRPM0569J, do hereby solemnly affirm and state as under :
1. 1. That I am the appellant in the above matter for the Assessment Year 2009- 10, and am conversant with the facts of the case.
2. That the appeal is filed against the order dated 06.02.2025 passed by the learned Commissioner of Income Tax (Appeals), Jaipur, arising from the assessment order passed u/s 147 r.w.s. 144 of the Income Tax Act, 1961.
3. That I came to know about the said appellate order only on 19.02.2025 through my email, as I was residing outside India and was not in regular access to postal communications.
4. That no physical copy of the appellate order was received by me.
5. That I returned to India in May 2025 and immediately took steps to file the appeal, which was duly filed online on 20.05.2025 before the Hon’ble Tribunal.
6. That the delay in filing the appeal was neither deliberate nor intentional, but solely due to my absence from India and lack of knowledge of the order.
7. That I respectfully pray that the delay may kindly be condoned, and the appeal be admitted and heard on merits in the interest of justice Sd/- Anil Kumar Meena PAN: ALRPM0569J Deponent “
Considering the reasons mentioned in the said application accompanied by an Affidavit of the assessee, we feel that the reasons mentioned in the Affidavit constitute sufficient cause for not filing the appeal within the time before us. Therefore, taking a lenient view and considering the principles laid down in the case of Collector, Land Acquisition vs. Mst. Katiji, 1987 AIR 1353 (SC), we condone the delay of 451 days in filing the appeal before us.
The brief facts of the case are that the assessee was living outside India and had no taxable income in India, therefore, no return of income was filed for the year under consideration. On the basis of AIR information, received from Vaishali Urban Co-operative Bank Ltd. regarding cash deposits of Rs. 37,64,400/- in the account of assessee, notice under section 148 of the Income Tax Act, 1961 was issued to the assessee on 04.03.2016 after recording reasons and obtaining approval from the competent authority under section 151 of the I.T. Act, 1961.The notice was returned back without service. Notices under section 142(1) along with questionnaire were issued to the assessee on 23.05.2016 and 10.06.2016 which were returned back unserved with the postal remark “No such person on the address”. A show cause notice under section 144 was issued on 20.06.2016 and served to the wife of the assessee through Smt. Adarsh Parashar, Inspector of the Ward. On 12.07.2016 the assessee attended and a final show cause letter along with notice under section 142(1) of the IT Act, 1961 was issued fixing the case for hearing on 15.07.2016. On 15.07.2016 the assessee neither filed any return of income nor filed any reply against the show cause notice. Thereafter, the AO completed the assessment under section 147/144 of the I.T. Act, 1961 vide his order dated 19.07.2016 making addition of entire amount of Rs. 37,64,400/- thereby assessing total income of assessee at Rs. 37,64,400/- ignoring the fact that dates on which cash was deposited in bank, assessee was out of India. Aggrieved by the order of the AO, assessee preferred appeal before the ld. CIT (A), who after considering the submissions of the assessee, set aside the assessment and remanded back the matter back to the AO for fresh assessment. Now, aggrieved by the order of the ld. CIT (A), the assessee has come in appeal before the Tribunal on the grounds reproduced herein above.
At the time of hearing before us, the ld. AR of the assessee submitted his ground-wise written submission as under :- “Ground No. 1 : Under the facts and circumstances of the case, learned CIT (A) erred in law and on facts in remanding the case to the Assessing Officer for fresh adjudication instead of deciding the matter on merits, despite all material facts and documentary evidence being available on record. Reply : The remand ordered by the CIT (A) is unjustified because the entire evidence necessary for adjudication was already on record – notably the appellant’s passport entries and Italian identity documents (PB No. 30 to 38) proving continuous foreign stay, proving continuous foreign stay during 14.07.2008 – 02.06.2010 (cash deposit period ) and 28.03.2016 – 02.07.2016 (notice period), and the FIR lodged against third parties 05.08.2016 against third parties misusing appellant’s bank account (PB No. 39 to 41) for fraudulent cash deposits in the Vaishali Urban Cooperative Bank account. Section 251 of the Act vests the CIT (A) with full powers to adjudicate appeals on merits, as affirmed in CIT v. Kanpur Coal Syndicate (53 ITR 225 SC), and remand is an exception, not the rule. In the present case, remand prolongs litigation and causes hardship when decisive findings could have been recorded on the evidence already submitted. Hence, the remand deserves to be set aside and the matter decided on merits.
Ground No. 2: Under the facts and circumstances of the case, learned CIT (A) erred in law and on facts in confirming the proceedings initiated under section 147 which are invalid as the notice under section 148 was not properly served, Appellant was out of India during the relevant period thereby rendering the entire assessment process void ab initio.
Reply : The reassessment initiated u/s 147 is void ab initio because the jurisdictional notice u/s 148 was never validly served. The initial notice was returned unserved, and later service by affixture occurred when the appellant was abroad, and he is non resident as conclusively shown by passport records (PB No. 30 to 38). Service of notice is mandatory for jurisdiction and not a procedural irregularity (Y. NarayanChetty v. ITO, 35 ITR 388 SC). In absence of proper service, the entire reassessment is invalid and all proceedings flowing from it, including the assessment order and demand, are vitiated. In this regard it is to clarify that notice u/s 148 was issued on 04.03.2016 which was returned unserved thereafter notices u/s 142(1) was issued on 23.03.2016 and 10.06.2016 which also could not be served in this period appellant was outside India. AO’s claim of telephonic adjournment on 22.06.2016 is untenable as appellant was abroad and no such communication had taken place as stated in the order of AO and CIT (Appeal). However, after coming back to India on 02.07.2016 when the assessee came to know about the reassessment proceedings under going in his case, the assessee on 08.08.2016 submitted a letter to theld. AO through registered post, a copy of which along with receipt of registry (PB No. 46) is being submitted post, a copy of which Paper Book filed u/r 46A of the Income Tax Rules, 1962 praying for the admission of the same as additional evidence. In the said letter, the assessee had explained that the cash deposits were not made by him since he was not in India for that relevant period of time. It was submitted that some person had operated his account in a fraudulent and unauthorized manner with regard to which the assessee had already filed a complaint u/s 190, CRPC before the appropriate Court of Law which was thereafter referred to the concerned Police Station for registration of the FIR, a copy of the registered FIR (PB No. 39 to 41) was also submitted alongwith the aforesaid letter before the ld. AO. Affidavit in this regard was filed before CIT (Appeals)(PB No. 42 to 43) this affidavit was never rejected by CIT appeals. As held in Y. Narayan Chetty v. ITO (35 ITR 388 SC), valid service of notice is jurisdictional; absence thereof vitiates reassessment. Thus, reassessment proceedings are void ab initio land deserve annulment. Therefore it is evident that notice could not be served and entire proceedings becomes null and void. Ground No. 3: Under the facts and circumstances of the case, learned CIT (A) was not justified while not considering the written submission made by appellant for addition of Rs. 37,64,400/- based on AIR transaction data is unsustainable as the cash deposits in the Vaishali Nagar Cooperative Bank account were fraudulently conducted by a third party, against whom legal action was taken by the appellant by way of filing FIR regarding unauthorized use of his bank account, which were crucial to the matter.
Reply :
The addition of Rs. 37,64,400/- made which was deposited in Vaishali Urban Co- operative Bank during July-December 2008, and addition made under Section 69 solely on the basis of AIR data is unsustainable because AIR/ITS information is merely a trigger for inquiry and cannot by itself establish ownership of the deposits (CIT v. Smt. Shanta Devi, 171 Taxman 113 (P&H HC); in the present case, the appellant’s bank account was fraudulently used by third parties during his continuous foreign stay, Passport entries show appellant was abroad from 14.07.2008 to 02.06.2010 deposits could not have been made by him duly substantiated by passport and Italian ID cards (PB No. 30 to 38) and supported by an FIR lodged with Shyam Nagar Police (PB No. 39-41). The Revenue has failed to disprove this uncontroverted evidence, and as held in CIT v. Daulat Ram Rawatmull (87 ITR 349 SC) the burden lies on the department to prove ownership of unexplained money. Further, in CIT v. P.K. Noorjahan (237 ITR 570 SC) the Supreme Court clarified that additions under Section 69A are discretionary and cannot be made where credible explanations are available. Since the authorities ignored this crucial evidence and proceeded purely on presumptions in violation of KishinchandChellaram v. CIT (125 ITR 713 SC), the addition merits deletion toto.
Ground No. 4: Under the facts and circumstances of the case, learned CIT (A) was not justified while not considering the written submission made by appellant for deletion of the demand of Rs. 31,64,116/- which is arbitrary, excessive, and contrary to the principles of natural justice and remanding back the case to AO for fresh adjudication. Reply : The consequential demand of Rs. 31,64,116/- arises solely from addition of Rs. 37,64,400/- which is arbitrary and collapses automatically once the base addition of Rs. 37,64,400/- is deleted or the reassessment is held invalid, as settled by CIT v. Daulat Ram Rawatmull(87 ITR 349 SC) and CIT v. Sinhgad Technical Education Society (397 ITR 344 SC); moreover, the CIT (A) erred in remanding the issue to the AO despite having full co-terminus powers to adjudicate on merits under section 251(1)(a)(CIT v. Kanpur Coal Syndicate, 53 ITR 225 SC), and failed to consider the appellant’s evidence including FAIR and bank statements, thereby violating principles of natural justice laid down in KishinchandChellaram v. CIT (125 ITR 713 SC). Accordingly, the demand is liable to be annulled in entirety. Ground No. 5 : Kindly stay the demand. Reply :
In light of the strong prima facie case, balance of convenience, and irreparable hardship likely to be caused by coercive recovery, it is respectfully prayed that recover of demand be stayed during pendency of this appeal, in line with principles laid down in ITO v. M.K. Mohammed Kunhi (71 ITR 815 SC). Ground No. 6 : Assessee craves to alter, modify, change grounds of appeal before hearing. Reply: The appellant reserves the right to add, modify or withdraw grounds of appeal at the time of hearing in accordance with settled appellate practice. Annexures (Evidence Filed): P.B. No. 30 to 38 : Passport copies and Italian identity P.B 39 to 41 : FIR filed with Shyam Nagar Police regarding fraudulent deposits. P.B. No. 42 to 43 : Affidavit and bank statements explaining misuse of bank account. P.B. No. 46 : Letter to AO. In view of the above facts, documentary evidence and binding judicial precedents, it is most respectfully prayed that this Hon’ble Tribunal be pleased to :
1. Quash the reassessment proceeding initiated under section 147; 2. Delete the addition of Rs. 37,64,400 made under section 69A; 3. Annul consequential demand of Rs. 31,64,116 and penalties;
4. Grant stay of demand during pendency of this appeal; and 5. Pass such further orders as deemed fit in the interest of justice. “
On the other hand, the ld. DR relied on the orders of the lower authorities.
We have heard the rival contentions, perused the material on record and gone through the orders of the lower authorities. In ground no. 1 the assessee has challenged the remanding the matter to the AO for fresh decision. In this regard, the ld. A/R of the assessee submitted that all the requisite material required for adjudication of the appeal was made available on record, therefore, the ld. CIT (A) was not justified in remanding the matter to the AO without any reasonable cause, moreover, it causes hardship and anxiety to the assessee. On perusal of the case file, we find that necessary evidence required for adjudication of the matter was already on record – notably the appellant’s passport entries and Italian identity documents (PB pages 30 to 38) proving continuous foreign stay during 14.07.2008 to 02.06.2010 during which period cash was deposited in his bank account with Vaishali Urban Cooperative Bank account. The assessee was again out of India, left to Italy on 28.03.2016 till 02.07.2016 as is evident from the assessee’s Passport, during which period notices to the assessee were issued by the Income- tax Department. Though notice under section 148 of the IT Act, 1961 was issued on 04.03.2016, however, the same was never served upon the assessee as the same was returned back to the Department as is also mentioned by the AO in his assessment order. The assessee has also placed on record the copy of FIR lodged with the Police on 05.08.2016 against third parties misusing appellant’s bank account (PB Pages 39 to 40) for fraudulent cash deposits in Vaishali Urban Cooperative Bank account. The assessee has filed an Affidavit dated 03.02.2018 duly sworn in before the Notary Public stating all the facts mentioned above.We, thus find that all the ingredients necessary to dispose off the appeal of the assessee were available on record before the ld. CIT (A) but he remanded the matter back to the AO, which we set aside. Section 251 of the IT Act, 1961 vests the CIT (A) with full powers to adjudicate appeals on merits, as affirmed by the Hon’ble Supreme Court in the case of CIT vs. Kanpur Coal Syndicate (53 ITR 225 SC), remand is an exception, not the rule. At the time of hearing before us, the ld. A/R of the assessee has also filed a true copy of Affidavit dated 25.01.2019 of Kuldeep Singh (PB Page 50) admitting all the fraudulent activities narrated in the Affidavit.Since all the requisite material necessary for adjudicating the matter are available on record, we are deciding the appeal of the assessee on merit. The direction of the ld. CIT (A) to the ld. AO to pass a fresh order is not sustainable under these circumstances and same is being quashed and hence ground no. 1 is allowed. Ground no. 2 relates to challenging the initiation of proceedings under section 147 as notice under section 148 of the IT Act, 1961 was not served properly.
The ld. AR of the assessee submitted that the reassessment initiated under section 147 of the IT Act, 1961 is void ab initio because the jurisdictional notice under section 148 was never validly served. In this regard, on perusal of the case file, we find that the notice under section 148 dated 04.03.2016 was issued to the assessee but the same was returned back without service. The AO mentioned in his order that later on the notice was served through service by affixture and no date was mentioned by the AO. The ld. A/R of assessee submitted that service by affixture was a mere formality, effected when the appellant was abroad. The ld.
AR of the assessee submitted before the ld. CIT (A) that the assessee has departed from India to Italy on 28.03.2016 and stayed there till 02.07.2016 which fact is apparent from the entries in the passport of the assessee (APB 14-29) filed before the ld. CIT (A). In this regard, the ld. A/R has filed the passport details before the Bench (PB Pages 30-38).Therefore, the subsequent notices issued by the AO under section 142(1) were also not received by the assessee. The AO in his assessment order stated that on 22.06.2016 the assessee telephonically requested for adjournment. However, on the said date the assessee was not in India which fact also is clear from the entries in the passport, therefore, he was neither aware of the assessment proceedings nor could have requested for any adjournment. From the above facts it is evident that the assessee was not aware of the assessment proceedings initiated against him. However, after coming back to India on 02.07.2016 when the assessee came to know about the reassessment proceedings undergoing in his case, the assessee submitted a letter dated 08.08.2016 through registered post, copy along with receipt of registry are placed on record (PB page 45) submitting that the cash deposits were not made by him since he was not in India for that relevant period of time. It is also noted from the case file that the assessee vide Application dated 17.12.2018 addressed to Commissioner of Income Tax (Appeals), Kota, Camp at Jaipur, submitted some documentary evidences and requested admission of the same as additional evidence under Rule 46A of the Income Tax Rules, 1962 (PB Pages 43-44). Service of notice is mandatory for jurisdiction and not a procedural irregularity as observed by the Hon’ble Supreme Court in the case of Y. Narayan Chetty vs. ITO, 35 ITR 388 (SC). In absence of proper service, the entire reassessment is invalid and all proceedings flowing from it, including the assessment order and demand, are vitiated. Thus, reassessment proceedings are void ab initio and deserve annulment. We, therefore, taking into consideration the above factual aspects of the matter and the judicial precedent, supra, are of the view that the assessment order passed by the AO with without proper service of notices to the assessee as is evident from documentary evidences placed on record and hence the whole proceedings including the assessment order are quashed being void ab initio. On merit: Ground No. 3 relates to addition of Rs. 37,64,400/- based on AIR transaction datais unsustainable as the cash deposits in the Vaishali Nagar Cooperative Bank account were fraudulently conducted by a third party, against whom legal action was taken by the appellant by way of filing FIR regarding unauthorized use of his bank account, which were crucial to the matter.
On perusal of the record, it is noted that the addition of Rs. 37,64,400/- made by the AO was solely based on AIR/ITS information that this amount was deposited in cash in assessee’s bank account with Vaishali Urban Cooperative Bank Ltd. As is evident from the assessment order, the amount was deposited in cash in the assessee bank account on various dates i.e. from 28.07.2008 to 24.12.2008. In this regard, the ld. A/R of the assessee submitted that during the period of cash deposit in the bank the assessee was in Italy. The ld. A/R further submitted that the assessee was in abroad from 14.07.2008 to 02.06.2010 in connection with his employment, therefore, deposits made during the period from 28.07.2008 to 24.12.2008 could not have been made by him, which is substantiated by the passport entries. The above submission of the assessee finds support from the assessee’s passport which shows that the appellant was in abroad from 14.07.2008 to 02.06.2010 (PB Pages 30-38). Thereafter, in the course of his employment, the assessee had again departed from India to Italy on 28.03.2016 and stayed there till 02.07.2016, which fact is apparent from the assessee’s passport. The assessee on return of Italy on 02.07.2016 came to know through the notice of Income Tax Department that several transactions of cash deposits and immediate withdrawals have taken place in his bank account. Accordingly, the assessee had approached the Court of Law with the complaint of above misappropriations took place in the bank account. Upon directions of the Court of Metropolitan Magistrate No. 15, Jaipur Metro, Jaipur, an FIR was registered by the Shyam Nagar Police Station, Jaipur on 05.08.2016. A copy of the FIR has been placed in the case file (PB Pages 39-40). Thereafter, the assessee vide his letter dated 08.08.2016 to the AO Ward 1(3) Jaipur submitted that he was not aware of the cash deposits made in his bank account during the period from 28.07.2008 to 24.12.2008 as he was out of India to Italy from 14.07.2008 to 02.06.2010. He came to know about the fraudulent activities on his return from abroad and immediately he filed a complaint and lodged FIR with the Police, copy of the FIR has been enclosed along with his letter dated 08.08.2016 (PB Page 45). The ld. A/R vide his letter dated 17.12.2018 to the Commissioner of Income Tax (Appeals), Kota, Camp at Jaipur requested to admit the additional, evidences. However the ld. CIT (A) without passing any order on such admission set aside the case to the ld. AO. In view of above submissions of ld. AR and the evidences proving that the above stated cash deposits had been made by one Shri Kuldeep Singh fraudulently we delete the addition so made. Further in view of our hioldingthe3 whole proceedings null and void for proper service of notice u/s 148 the above addition do not sustain any more. We accordingly allow this ground.
In view of our decision on ground no. 2 whereby we have quashed the whole proceedings undertaken in the case of the appellant due to non service of notice u/s 148 we do not deem it expedient to decide other grounds as the same have become infructuous. In the result, appeal of the assessee is allowed. Order pronounced in the open court on 26/09/2025.
Sd/- Sd/- ¼ xxu xks;y ½ ¼MkWa-,l-lhrky{eh½ (GAGAM GOYAL) (Dr. S. Seethalakshmi) ys[kk lnL; @Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 26/09/2025 *Santosh आदेश की प्रतिलिपिअग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू The Appellant- Anil Kumar Meena., Jaipur. 1. 2. izR;FkhZ@ The Respondent- ITO, Ward-1(3), Jaipur. 3. vk;djvk;qDr@ The ld CIT 4. विभागीय प्रतिनिधि] आयकरअपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 5. xkMZQkbZy@ Guard File By order,
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