MADHULIKA MISHRA,MUMBAI vs. ITO WARD 5(1)(5), NOIDA

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘E’, NEW DELHI BEFORE PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI YOGESH KUMAR US, JUDICIAL MEMBER (Assessment Year : 2017-18) Vs. ITO Madhulika Mishra B-1501, Tower-4, Enchante, Ward – 5(1)(5) Lodha New Cuffe Parade, Noida Wadala East, Mumbai-400 022 PAN No. ASPPM 9325 H (APPELLANT) (RESPONDENT) Assessee by Shri Ganesh Raj Gopalen, C.A. and Shri Kirit Vasan. R. C.A. Revenue by Shri Jatender Kumar Kale, Sr. D.R. Date of hearing: 01.08.2024 Date of Pronouncement: 01.08.2024 ORDER PER PRADIP KUMAR KEDIA, AM :

The captioned appeal has been filed by the assessee against the first appellate order of the Ld. Commissioner of Income Tax (Appeals) – National Faceless Appeal Centre (NFAC), Delhi dated 12.01.2024 arising from the assessment order dated 29.03.2022 passed by the ITO, Ward – 5(2)(1), G. Budh Nagar (hereinafter referred to as ‘AO’) under Section 147 r.w.s 144 of the Income Tax Act, 1961 (the Act) concerning Assessment Year 2017-18.

2. The grounds of appeal raised by the assessee reads as under:

1. On facts and in the circumstances of the case and in law, the learned Commissioner of Income-tax (Appeals), National Faceless Appeal Centre Madhulika Mishra vs. ITO A.Y. 2017-18 -2- ("CIT(A)/NFAC") erred in holding that the Appellant did not fulfill the conditions mentioned in section 249(4)(b) of the Income-tax Act, 1961 (the "Act") with respect to the appeal filed by the Appellant under section 246A of the Act and further erred in holding that the said appeal as not fit for admission in terms of section 249 of the Act.

2. On facts and in the circumstances of the case and in law, the learned CIT(A)/NFAC erred in not granting sufficient opportunity to the Appellant to make an application under proviso to section 249(4) of the Act, if applicable.

3. On the facts and circumstances of the case and in law, the CIT(A)/ NFAC ought to have appreciated that the Assessing Officer had erred in reopening the assessment under section 147 and completing the same without duly serving the notice under section 148 as required under the law, and further, even though he was not the jurisdictional officer.

4. On the facts and circumstances of the case and in law, the CIT(A)/NFAC ought to have appreciated that the Assessing Officer had erred in not serving a show- cause notice under section 144 in accordance with law and consequently did not provide an opportunity to the appellant before passing the final assessment order under section 147 r.w.s. 144 of the Act 5. On the facts and circumstances of the case and in law, the CIT(A)/NFAC ought to have appreciated that the Assessing Officer had erred in concluding that there was sale of immovable property situated at 1501, Lodha Enchannate, B Wing, New Cuff Parade, Wadala, Mumbai and making an addition of Rs.2,38,64,480/- as capital gains to the appellant when there was a purchase of the said immovable property during the year by the appellant's spouse jointly with her.

6. The above grounds of appeal are made without prejudice to one another. The appellant carves leave to add, alter or modify any of the above grounds of appeal.”

3. When the matter was called for hearing, the learned Counsel submitted at the outset that the case was reopened on the premise that the assessee has sold immovable property of Rs.3,97,74,132/- and also received salary of Rs.3,73,347/- for the F.Y. 2016-17 relevant A.Y. 2017-18 but however has not filed the return of income. The learned Counsel submitted that the information gathered by the Revenue is factually

Madhulika Mishra vs. ITO A.Y. 2017-18 -3- flawed. While the assessee has earned salary as stated, there was no sale of property during the year under consideration as alleged and therefore, no capital gain was accrued as further alleged. In fact, the correct position was opposite. The assessee had actually purchased some property on the same amount during the year where she was merely a co-owner along with her husband. The source of purchase of property was salary earned by the husband and substantial loans secured by husband from HDFC Ltd. amounting to Rs. 3.47 crore. The learned Counsel thus submitted that as against the property of Rs.3.97 crore purchased, a sum of Rs.3.47 crore was financed out of bank loans and remaining amount was paid out of the accumulated resources of the husband. The name of the assessee who is spouse of Mr. Jitesh Shah, is inserted only as a matter social security and to cover the risk under General Laws. It is common in Indian Society to add name of spouse in such agreement. The assessee has not paid any amount whatsoever for the purchase of the property which is wrongly alleged by AO to be sale of the property. To assert such stand, the learned Counsel placed an affidavit duly verified and deposed on oath by the assessee negating sale of any residential property and also non-service of notices on her leading to non-compliances before the Assessing Officer. The learned Counsel thus submitted that the impugned additions made in the hands of the assessee are wholly unjustified being opposed to the basic facts of the case. The learned Counsel accordingly sought appropriate brief in the matter.

Madhulika Mishra vs. ITO A.Y. 2017-18 -4- 5. On perusal of first Appellate Order, it seen that the CIT(A) has dismissed the appeal of the assessee summarily on account of non-compliance of Section 249(4)(b) of the Act alleging the non-payment of advances tax liability and thereby held that the appeal before the CIT(A) is not maintainable. It was contended on behalf of assessee that there will be no advance tax liability on the salary income and therefore, there is no breach of provisions of section 249(4)(b) of the Act. The remaining income assessed towards sale of property in the hands of the assessee is on account of gross misconception of facts by the AO wrongly treating purchase of the property as sale thereof.

Madhulika Mishra vs. ITO A.Y. 2017-18 -6- Due to the resulting emotional upheaval at that time, 1 state that I was not in a suitable frame of mind to notice these letters and respond to them within the short period of 4-5 days given for their compliance. I state that the two letters came in quick succession and in the middle of my personal problems that 1 missed the letters and could not reply to them. 2.4 I state that I did not deliberately fail to respond to the letters from the NFAC dated 26.12.2023 and 4.1.2024, and it was due to reasons beyond my control.

Order was dictated and pronounced in the open court on 01.08.2024