NIMISH VIVEK JUVEKAR ,MUMBAI vs. ITO WARD 20(2)(1), MUMBAI

Nimish Vivek Juvekar, AY 2015-16 2. The brief facts are that reassessment proceedings were initiated based on information flagged under the Risk Management Strategy formulated by the Central Board of Direct Taxes (CBDT). The Assessing Officer issued notice u/s 148 of the Act after following the due procedure of law. The assessee did not comply with the said notice and not filed the return of income. Therefore, the Assessing Officer issued various notices u/s 142(1) of the Act, but the same were not complied. In response to show- cause notice issued, the assessee sought adjournment and thereafter submissions were filed without any supporting evidences. Consequently, assessment was completed under section 147 read with section 144 on 11.03.2024. 2.1 The Assessing Officer in the re-assessment proceeding noted that the assessee has transferred property on account of the re- development and therefore, any gain arisen, accrued or received on account of such transaction was required to be offered to tax under the head ‘capital gain’. But the assessee had neither filed any original return of income nor any response to notice u/s 148 of the Act. Thus, the Assessing Officer treated the redevelopment transaction as transfer giving rise to short-term capital gain of ₹1,60,84,565/-, adopting cost of acquisition at Nil and treating the holding period as less than 36 months. The Assessing Officer in the order passed u/s 147 r.w.s. 144 on 11th March, 2024 alongwith making addition of short term capital gain of Rs. Rs.1,60,84,565/- also made other additions of gain arising on transfer of securities, failure to explain source of payment of credit card amounting to Rs.7,955,37/-, interest received of Rs.23,378/- etc., Nimish Vivek Juvekar, AY 2015-16 2.2 On further appeal before the Ld. CIT(A), the assessee pleaded that he was residing at Kharghar, Navi Mumbai but since February 2022, he went to United Kingdom i.e. in London, on a student visa for study. The assessee lost his parents and now there was nobody else in his family to look after his financial investment in India and taxation matter. The assessee explained that one of his friend took care of attending the income tax matters but he was also not aware of the digital process of scrutiny of the Income Tax Department and he was under honest and bona fide belief that whenever tax hearing would be there, the income tax notice would come by post or through notice server and, therefore, the assessee could not attend personally to the notice as issued by the Assessing Officer. It was explained on the part of the assessee that he had not purchased any new flat but he had received new flat in lieu of the old flat due to redevelopment of the building. 2.3 The Ld. CIT(A) in view of observation that the Assessee was residing in the United Kingdom during the proceedings and lacked local support due to the demise of his parents, which constituted a bona fide reason for non-compliance. Invoking the amended powers under Section 251(1)(a) (w.e.f. 01.10.2024), the Ld. CIT(A) set aside the assessment and remanded the matter to the AO for de novo adjudication. The Assessing Officer was directed to pass a fresh order uninfluenced by earlier observations. The relevant finding of ld CIT(A) is reproduced as under: “The AO has passed the order u/s 144 of the Act in this case for non-filing of further details by the assessee.

Nimish Vivek Juvekar, AY 2015-16 In view of the power conferred as per clause (a) of sub-section (1) of section 251 of the Act, applicable with effect from 01.10.2024, it will be just and proper, in the interest of substantial justice, to set aside the impugned assessment order passed u/s 144 of the Act back to the file of the AO for deciding the case afresh, as per the provisions of the Act and for the reasons for which the case was reopened u/s 147 of the Act. The action as proposed above will render sufficient opportunity for the appellant to explain his case with documentary evidences in his possession. Needless to say, the AO shall provide reasonable opportunity of being heard to the appellant in accordance with the principles of natural justice. He will, under power conferred upon him in accordance with the provisions of the Act, will also free to call for any information / evidence that may be necessary for computation of total income of the assessee. It is also incumbent upon the assessee to provide all cooperation to the AO for disposal of the case. Further, the Assessing Officer shall pass the order in without being influenced by the ex-parte order passed in this case. In the result, the assessment is set aside to the file of the AO for fresh assignment.”

Nimish Vivek Juvekar, AY 2015-16 4. We have heard the rival submissions and perused the ma- terial on record. At the outset, it is material to note that the Ld. CIT(A) has already set aside the ex parte assessment and restored the matter to the Assessing Officer for fresh adjudication on me- rits. The core of the Assessee's grievance lies in the "jurisdictional infirmity" of the reassessment. The Assessee argues that the no- tice dated April 6, 2022, is void ab initio as it falls outside the permissible window for A.Y. 2015-16 under the post-TOLA (Taxa- tion and Other Laws Relaxation Act) regime. While we note that the Ld. CIT(A) has already restored the matter to the AO on me- rits, we are of the considered view that a challenge to the "very inception of proceedings" (jurisdiction) must precede the adjudi- cation of the "merits of the assessment." A valid jurisdiction is a condition precedent to a valid assessment.

4.1 The principal legal objection raised before us pertains to li- mitation and jurisdiction in issuing notice under section 148 for A.Y. 2015-16 after 01.04.2021. However, from the material pre- sently available on record, it is not discernible:

(i) whether any notice under the unamended provisions was is- sued prior to 31.03.2021; (ii) whether the impugned notice dated 06.04.2022 was issued pursuant to or in consequence of the judgment of the Hon’ble Supreme Court in Union of India v. Ashish Agarwal; and (iii) whether the procedural requirements under section 151A and the applicable CBDT notifications were duly complied with.

Nimish Vivek Juvekar, AY 2015-16 4.2 These foundational aspects require factual verification. In appellate proceedings, while pure questions of law may be de- cided if the relevant facts are admitted or undisputed, where the adjudication of a legal issue is intertwined with foundational fac- tual examination, it is appropriate that such issues be first ex- amined by the primary fact-finding authority.

4.3 Since the assessment itself stands set aside by the Ld. CIT(A) and remitted for fresh adjudication, we are of the consi- dered view that the ends of justice would be met if the legal objec- tions raised by the assessee — including limitation, jurisdiction under section 151A, and alleged borrowed satisfaction — are also restored to the file of the Assessing Officer for comprehensive ad- judication.

4.4 In light of the above, we find it appropriate to expand the scope of the remand. The AO is directed to adjudicate upon:

(i) First: The legal validity of the notice issued under Sec- tion 148, specifically regarding the period of limitation and the applicability of Deepak Steel (supra). (ii) Second: The validity of the notice in light of the Face- less Assessment Scheme and Section 151A. (iii) Third: If jurisdiction is found to be validly assumed, the AO shall decide the matter on merits, providing the Assessee a reasonable opportunity to produce evidence regarding the redevelopment scheme and the nature of capital receipts.

Nimish Vivek Juvekar, AY 2015-16 4.5 All issues are kept open. The Assessing Officer shall pass a reasoned and speaking order in accordance with law after afford- ing due opportunity of hearing to the assessee.We clarify that we have expressed no opinion on the merits of the legal or factual is- sues.