ASHA VIJAYKUMAR MITTAL ,MUMBAI V. ITO, WARD 41(3)(1), MUMBAI

ITA 94/MUM/2025

AI Insights

The case involves Asha Vijaykumar Mittal, the assessee, who appealed against the order of the Commissioner of Income Tax (Appeals) which upheld the assessment made by the Income Tax Officer under sections 144 and 147 of the Income Tax Act, 1961. The assessment was based on incriminating documents found during a search and seizure operation, which indicated that the assessee had made unexplained cash investments in real estate. The CIT(A) dismissed the assessee's appeal primarily due to non-compliance and failure to substantiate her claims. The Tribunal found that the CIT(A) had not decided the issues on merits and thus remanded the case for a fresh decision.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 473724 (ITAT-MUMBAI)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-02-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: K
• Assessment Year: 2009-2010
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KIRAN UNAVEKAR
• Assessee Lawyers: SHIRISH SHAH
• Keywords: Opportunity of being heard; Unexplained investment; Principle of natural justice
• Section: 148; 144; 142(1)

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL “K(SMC)” BENCH, MUMBAI BEFORE MS. KAVITHA RAJAGOPAL, JM AND SHRI. OMKARESHWAR CHIDARA, AM ITA No. 94/Mum/2025 (Assessment Year: 2009-10) Asha Vijaykumar Mittal J-401, New Bhoomi Park, Phase – 5, Malad (W), Mumbai – 400095. Vs. ITO Ward 41(3)(1) Kautilya Bhavan, Mumbai – 400051. PAN/GIR No. (Assessee) : (Respondent) Assessee by : Shri. Shirish Shah Respondent by : Shri. Kiran Unavekar SR. DR. Date of Hearing : 19.02.2025 Date of Pronouncement : 21.02.2025 O R D E R Per Kavitha Rajagopal, J M: This appeal has been filed by the assessee, challenging the ex parte order of the learned Commissioner of Income Tax (Appeals), ADDL/JCIT (A)-5, Delhi (‘ld.CIT(A) for short), National Faceless Appeal Centre (‘NFAC’ for short) passed u/s.250 of the Income Tax Act, 1961 (‘the Act'), pertaining to the Assessment Year (‘A.Y.’ for short) 2009-10. 2. It is observed that the present appeal has been filed with a delay of 282 days for which the assessee has filed an affidavit stating the reason for the said delay. Upon perusal of the same and after hearing the ld. DR, we deem it fit to condone the delay on the ground that the assessee had ‘sufficient cause’ for the delay. Delay condoned. 3. The assessee has raised the following grounds of appeal: ITA No. 94/Mum/2025 (A.Y. 2009-10) Asha Vijaykumar Mittal 2 1. The learned CIT(A) has erred in law and in facts in passing an order without providing a proper opportunity of being heard. 2. The learned CIT(A) has erred in not adjudicating the Ground No. 1 before him i.e. \"No notice U/s. 148 or Section 142(1) has been served on the appellant. As such, the assessment is bad in law.\" 3. The learned CIT(A) has erred in not adjudicating the Ground No. 2 before him i.e. \"Without prejudice to above, the notice u/s 148 dtd: 30-03-2016 dispatched on 02-04-2016 was time barred. As such, the Assessment is void ab initio.\" 4. The learned CIT(A) has erred in holding that the A.O. has not erred in not granting an opportunity to cross examine the so-called person on whose statement the A.O. was relying. 5. The learned CIT (A) has erred in facts and circumstances of the case and in law in making an addition of Rs.8,25,000/- on account of unexplained investment to the income of the appellant. 6. The appellant reserves the right to add, alter, amend, delete or modify any ground or grounds of appeal on or before the hearing.” 2. The brief facts are that the assessee is an individual and had filed her return of income dated 30.03.2010, declaring total income at Rs. 1,73,950/-. Pursuant to the search and seizure action carried out in the case of the M/s. Ekta and Bhoomi Group dated 05.10.2015, the assessee’s case was reopened vide notice u/s. 148, dated 30.03.2016 based on the incriminating documents found during the search pertaining to on-money received by M/s. Bhoomi Group. On the basis of incriminating documents found, statement of Shri. Akshay Doshi, Director of M/s. Bhoomi Group was recorded u/s. 131 of the Act, wherein he admitted that cash payments received over and above agreement value on sale of flats is in the nature of on-money not recorded in books of accounts and the assessee was one of the parties who had booked flat No. J-401 in the said projects and paid Rs. 8,25,000/- as cash over and above agreement value to the builders. It is observed that the assessee had been non-compliant during the assessment proceeding and the ld. AO passed the assessment order u/s. 144 r.w.s. 147 of the Act, ITA No. 94/Mum/2025 (A.Y. 2009-10) Asha Vijaykumar Mittal 3 dated 18.02.2021, where the ld. AO determined the total income at Rs. 9,98,950/- after making addition of Rs. 8,25,000/- as unexplained investment. 3. Aggrieved the assessee was in appeal before the first appellate authority, challenging the assessment order. 4. The ld. CIT(A) vide order dated 31.01.2024, upheld the order of the ld. AO, for the reason that the assessee has failed to substantiate her claim and has not made proper compliance. 5. The assessee is in appeal before us, challenging the impugned order of the ld. CIT(A). 6. We have heard the rival submissions and perused the materials available on record. It is observed that the assessee has challenged the additions made by the ld. A.O. before the first appellate authority and the same was dismissed on the ground that the assessee has not discharged her onus and has not complied during the assessment proceedings. It is also observed that the ld. CIT(A) has not decided the issue on the merits and has merely dismissed the assessee’s appeal stating that the reassessment was held to be valid. 7. The learned Authorised Representative ('ld. AR' for short) for the assessee contended that the assessee has got a good case on the merits and prayed that the assessee may be given one more opportunity to present her case before the ld. CIT(A). 8. The learned Departmental Representative ('ld. DR' for short) vehemently opposed to setting aside the issue to the file of the ld. CIT(A) for the reason that the assessee was given several opportunities which was not availed by the assessee. ITA No. 94/Mum/2025 (A.Y. 2009-10) Asha Vijaykumar Mittal 4 9. On the above facts of the case, we are of the considered view that the assessee may be given one more opportunity to present her case before the first appellate authority by adhering to the principles of natural justice and in interest of justice dispensation, where the ld. CIT(A) has failed to decide the issue on the merits. We, therefore, remand all these issues back to the file of the ld. CIT(A) for de novo adjudication. The assessee is directed to comply with the proceedings without any undue delay on her side and the ld. CIT(A) is also directed to decide the issue on the merits of the case based upon the submission of the assessee and in accordance with law. 10. In the result, the appeal filed by the assessee is allowed for statistical purpose. Order pronounced in the open court on 21.02.2025 Sd/- Sd/- (OMKARESHWAR CHIDARA) (KAVITHA RAJAGOPAL) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai; Dated: 21.02.2025 Karishma J. Pawar (Stenographer) Copy of the Order forwarded to: 1. The Appellant 2. The Respondent 3. CIT- concerned 4. DR, ITAT, Mumbai 5. Guard File BY ORDER, (Dy./Asstt.Registrar) ITAT, Mumbai "