ALI BAKSH THRU L/H GAFFAR KHAN ,JAIPUR V. INCOME TAX OFFICER , JAIPUR

ITA 1013/JPR/2025

AI Insights

The case involves Ali Baksh, the original assessee, who passed away during the pendency of an appeal against an assessment order for the year 2011-12. The appeal was initially filed by Ali Baksh but continued by his legal heir, Gaffar Khan, after his death. The Income Tax Officer had reopened the assessment under section 147 read with section 144 of the Income Tax Act, 1961, based on the grounds that Ali Baksh had not filed his return and had sold a property without reporting it. The CIT(A) set aside the original assessment order and directed a re-examination of the case. However, the ITAT found that the reopening of the assessment was based on incorrect facts, particularly that the original assessee had indeed filed a return and reported the property sale.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 784687 (ITAT-JAIPUR)
• Duration Of Justice: 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-11-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 09-07-2025
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GAURAV AWASTHI
• Assessee Lawyers: PRAVIN SARASWAT
• Keywords: Set aside; Opportunity of being heard; Principle of natural justice; Reason to believe
• Section: 147; 148; 144

Judgement Text

" vk;dj vihyh; vf/kdj.k] t;iqj U;k;ihB] t;iqj IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”B-Bench” JAIPUR Jh xxu xks;y] ys[kk lnL; ,oa Jh ujsUnz dqekj] U;kf;d lnL; ds le{k BEFORE: SHRIGAGAN GOYAL, AM& SHRI NARINDER KUMAR, JM vk;dj vihyla-@ITA No. 1013/JPR/2025 fu/kZkj.k o\"kZ@AssessmentYear : 2011-12 Ali Baksh Through L/H Gaffar Khan Flat No. 103, Diamond Residency, 200 Ft. road Kanta, Jhotwara, Jaipur. cuke Vs. Income Tax Officer Ward-3(1), Jaipur. LFkk;hys[kk la-@thvkbZvkjla-@PAN/GIR No. BCKPA1805Q vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksjls@Assesseeby : Shri Pravin Saraswat, C.A. jktLo dh vksjls@Revenue by: Shri Gaurav Awasthi, Addl. CIT lquokbZ dh rkjh[k@Date of Hearing :11/11/2025 mn?kks\"k.kk dh rkjh[k@Date of Pronouncement: 12/11/2025 vkns'k@ORDER PER: NARINDER KUMAR, JUDICIALMEMBER . Present appeal came to be presented on 09.07.2025. Form no. 36 has been signed and verified by Gaffar Khan legal heir of Ali Baksh the original assessee. The order under challenge is dated 30.05.2025, passed by Learned CIT(A), NFAC. Printed from counselvise.com 2 ITA No. 1013/JPR/2025 Ali Baksh thru. L/H Gaffar Khan, Jaipur. Vide impugned order, the assessment order dated 30.10.2018, passed u/s 147 r.w.s. 144 of the Income Tax Act, 1961 (hereinafter referred to as “the Act”), relating to the assessment year 2011-12 has been set aside and the appeal filed by Ali Baksh, the original assessee, has been disposed of while exercising powers under the proviso to clause(a) of sub- section(1) of Section 251 of the Act, with directions to the Assessing Officer to re-examine the case afresh, while ensuring full compliance with the principles of natural justice by providing the adequate opportunity of being heard, and considering all the relevant facts, submissions and documentary evidence. Impact of death of the original assessee during pendency of appeal before Learned CIT(A) 2. It may be mentioned here that during pendency of the appeal filed before Learned CIT(A), NFAC, the original assessee died. He died on 15.09.2020. The appeal u/s 250 of the Act was on 08.02.2019. The impugned order was passed by Learned CIT(A), NFAC on 30.05.2024, against Ali Baksh, even though he had left this world during pendency of the appeal on 15.09.2022, and the factum of death was brought to the notice of the office of Learned CIT(A) by the legal heir-appellant herein. Printed from counselvise.com 3 ITA No. 1013/JPR/2025 Ali Baksh thru. L/H Gaffar Khan, Jaipur. Ld. AR for the appellant L/R of the original assessee has submitted that in the given situation the impugned order should not have been passed against the original assessee. 3. Vide order dated 06.10.2025, present appeal was adjourned as Ld. AR sought time to have instructions as to whether the factum of death was brought to the notice of Learned CIT(A), NFAC, and if so, as to whether any step was taken at that time to bring on record legal heir(s) of the assessee during pendency of the appeal. Ld. DR for the department has submitted before this Appellate Tribunal, letter dated 31.10.2025, accompanied by report from the ITO, Ward-1(1), Jaipur. As per this report, on 06.12.2022 legal heir of the assessee filed reply informing about the factum of death of the original assessee on 15.09.2020. Death certificate of the original assessee was also reportedly submitted during pendency of the appeal. In the given situation, the impugned order should have been passed in the name of the legal heir, and not in the name of the original assessee. Printed from counselvise.com 4 ITA No. 1013/JPR/2025 Ali Baksh thru. L/H Gaffar Khan, Jaipur. Admittedly, the assessment proceedings were initiated against the original assessee during his left time, whereupon he filed an appeal challenging the assessment order, and the legal heir of the assessee participated in the appellate proceedings before Learned CIT(A). In the given situation, simply because the office of Learned CIT(A) has, instead of issuing the impugned order depicting the name of the legal heir, as the assessee-appellant, issued the same in the name of the original assessee, for want of any prejudice to the assessee, on this ground, we do not find any illegality in the impugned order. Whether re-opening under section 148 of the Act was on incorrect facts? 4. Ld. AR for the appellant has referred to page 28 of the paper book submitted on 20.08.2025, to point out that the said document-copy of notice u/s 148 of the Act issued to the original assessee did not contain correct facts, and as such, reopening of the matter by the department can safely be said to be invalid and the assessment order deserved to be set aside for want of jurisdiction of the Assessing Officer, but Learned CIT(A) did not consider this aspect while disposing of the appeal. Printed from counselvise.com 5 ITA No. 1013/JPR/2025 Ali Baksh thru. L/H Gaffar Khan, Jaipur. 5. Notice u/s 148 of the Act, as is available at page 28 of the paper book reads as under:- “Reasons for reopening of the assessment in case Ali Baksh for the A.Y. 2011-12 u/s 147 of the Act:- 1. On perusal of office record, it has been noticed that the assessee had not filed his return of income for the A.Y. 2011-12. 2. As per information available on records that the assessee had sold an immovable property i.e. G-2, Ground Floor PN 6/401, chitra Koot, Ajmer road, jaipur in the F.Y. 2010-11 relevant to A.Y. 2011-12, for sale consideration of Rs. 40,00,000/- and value of which by stamp duty authorities have been taken at Rs. 4813842/-. 3. The above referred person was asked to furnish the details about the sold property along with required documents. The assessee had not made any compliance. It has also been noticed that the above mentioned person is not having PAN and had not filed his ITR for the A.Y. 2011-12, though the total income of the assessee had exceeded the maximum amount which is not chargeable to tax. 4. Therefore, I have reason to believe that amount of Rs. 4813842 has escaped for being assessed to tax, within the meaning of section 147 of the IT Act, 1961 for A.Y. 2011-12. Therefore, it is a fit case for issuance of notice u/s 148 of the IT Act, 1961 for the A.Y. 2011-12 and accordingly, it is requested to kindly accord necessary approval as laid down under sub section (1) of section 151 of the I.T. Act, 1961.” 6. In para 1 of the above said notice issued for the purposes of re- opening of the matter, it was observed that the assessee had not filed return of income for the assessment year 2011-12. Printed from counselvise.com 6 ITA No. 1013/JPR/2025 Ali Baksh thru. L/H Gaffar Khan, Jaipur. Ld. AR for the appellant has drawn our attention to the copy of ITR for the assessment year 2011-12 available from page 21 to 27. Learned AR has submitted that on 25.03.2013, in view of the transaction of the ITR submitted electronically, the first reason given in the notice u/s 148 of the Act that the assessee had not filed return of income, is established to be wrong and against records, and result of non application of mind and non consultation of the records available with the department. 7. Another reason given in the notice u/s 148 of the Act, as noticed above, was that as per information available on record the assessee had sold immovable property in the financial year 2010-11, for a sale consideration of Rs. 40,00,000/-, but the assessee had not furnished details of the said sale, and as such, not complied with the law. 8. Ld. AR for the appellant has drawn our attention to page 24 of the paper book. This is part of the ITR. As per this page, column“ capital gain” reflects income of Rs. 1,04,45,000/-. The contention is that because of said entry in the ITR, even this reason for re-opening of the assessment, as given in the notice u/s 148 of the Act, was incorrect. Printed from counselvise.com 7 ITA No. 1013/JPR/2025 Ali Baksh thru. L/H Gaffar Khan, Jaipur. 9. In response to this submission and the contents of the ITR for the assessment year 2011-12, Ld. DR for the department has simply submitted that he stands by the assessment order. But the fact remains that in view of the above submissions, reopening of the assessment u/s 148 of the Act was based on incorrect facts. Consequently, we hold that notice u/s 148 of the Act is bad in law. It is significant to note that same issue was raised by the appellant before Learned CIT(A), but while passing the impugned order, Learned CIT(A) did not deal with this issue and rather opted to exercise powers for restoration of the matter to the Assessing Officer, for afresh assessment. 10. In the given situation, in our considered view, Learned CIT(A) was required to deal with the issue specifically raised that the notice u/s 148 of the Act for reopening of the assessment was bad in law, having been based on incorrect facts. Result 11. In view of the above discussion, the appeal filed by the legal heir of Ali Baksh, the original assessee deserves to be allowed and the same is Printed from counselvise.com 8 ITA No. 1013/JPR/2025 Ali Baksh thru. L/H Gaffar Khan, Jaipur. allowed. Consequently, the impugned order, passed by Learned CIT(A) is hereby set aside. File be consigned to the record room after the needful is done by the office. Order pronounced in the open court on 12/11/2025. Sd/- Sd/- ¼xxu xks;y½ ¼ujsUnz dqekj½ (GAGAN GOYAL) (NARINDER KUMAR) ys[kk lnL; @Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 12/11/2025 *Santosh vkns'k dh izfrfyfivxzsf’kr@Copy of the order forwarded to: 1. The Appellant- Ali Baksh Through L/H Gaffar Khan, Jaipur. 2. izR;FkhZ@ The Respondent- ITO, Ward-3(1), Jaipur. . 3. vk;djvk;qDr@Theld CIT 4. vk;djvk;qDr@CIT(A) 5. foHkkxh; izfrfuf/k] vk;djvihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur 6. xkMZQkbZy@ Guard File ITA No. 1013/JPR/2025) vkns'kkuqlkj@ By order, lgk;diathdkj@Asstt. Registrar Printed from counselvise.com "