AYESHABEE BABU KHAN,MANKHURED V. ITO 27 1 1 MUMBAI, VASHI NAVI MUMBAI

ITA 2887/PUN/2024

AI Insights

The case involves Ayeshabee Babu Khan, the appellant, who appealed against the order of the Commissioner of Income Tax (Appeals), which dismissed her appeal due to non-payment of advance tax and non-filing of the return of income. The appellant had not filed her return for the assessment year 2016-17, despite having sold and purchased immovable properties during the year. The Income Tax Officer (ITO) issued a notice under section 148 of the Income Tax Act, 1961, and subsequently made an assessment under section 144 based on the available records, adding short-term capital gains and unexplained investments to the appellant's income. The CIT(A) dismissed the appeal on procedural grounds, leading to the current appeal before the Tribunal.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 707076 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-07-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2016-2017
• Appeal Filed On: 24-12-2024
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ADITYA M. RAI
• Assessee Lawyers: BHUPENDRA SHAH
• Keywords: Set aside; Unexplained investment
• Section: 147; 148; 144; 142(1); 54; 69

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, MUMBAI BEFORE SHRI NARENDRA KUMAR BILLAIYA, ACCOUNTANT MEMBER SHRI SANDEEP SINGH KARHAIL, JUDICIAL MEMBER ITA No.2887/PUN/2024 (Assessment Year : 2016-17) Ayeshabee Babu Khan, 1, Mankhured Station Road, T.F. Donar S.O., Mumbai – 400088 PAN : CGOPK4227M ............... Appellant v/s ITO – 27(1)(1), Vashi Railway Station, 3X7X GQP 3rd & 4th Floor, 6th Tower Complex Vashi, Navi Mumbai. ……………… Respondent Assessee by : Shri Bhupendra Shah Revenue by : Shri Aditya M. Rai, Sr.DR Date of Hearing – 09/07/2025 Date of Order - 10/07/2025 O R D E R PER SANDEEP SINGH KARHAIL, J.M. The assessee has filed the present appeal against the impugned order dated 06.11.2024, passed under section 250 of the Income Tax Act, 1961 (“the Act”) by the learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi [“learned CIT(A)”], for the assessment year 2016-17. 2. In this appeal, the assessee has raised the following grounds: - “1. In the facts and the circumstances of the case and in law, ITA No.2887/PUN/2024 (A.Y. 2016-17) 2 a. The JAO erred in Reopening the case u/s 148A whereas it was to be done by the FAO and therefore notice u/s. 148 is bad in law. b. The JAO took sale value of same flat of Rs. 49 lacs twice and hence the reasons recorded are wrong. c. Adding sale value of flat instead of LTCG after exemption u/s. 54. d. The JAO reopened the case even though the alleged amount is less than Rs 50 lacs e. The JAO passed order u/s 148A without granting an opportunity of hearing f. Only mechanically issuing notice u/s. 148. g. Based on presumption and assumption. 2. In the facts and circumstances of the case and in law, the JAO erred in the order even though the same was to be passed by the FAO. 3. In the facts and circumstances of the case and in law, the Assessing Officer erred in adding Rs. 39 lacs as unexplained investment even though the same was purchased out of sale proceeds of old flat for Rs. 49 lacs and thereby eligible for exemption u/s. 54 4. In the facts and circumstances of the case and in law, the Assessing Officer erred in adding sale value of flat instead of LTCG after exemption u/s 54 and taking indexed cost of old flat. 5. In the facts and circumstances of the case and in law, the Assessing Officer erred in adding sale value of flat instead of LTCG after exemption u/s. 54 and taking indexed cost of old flat. 6. In the facts and the circumstances of law, the Ld. Commissioner of Income Tax(A) erred in dismissing appeal u/s 249[4] even though no taxable income was earned by the Appellant and without restoring the same back to AO u/s. 251.” 3. We have considered the submissions of both sides and perused the material available on record. The brief facts of the case are that the assessee is an individual and for the year under consideration did not file her return of income. On the basis of the information received from NMS Portal that during the year under consideration, the assessee sold an immovable property for a total consideration of Rs. 98 Lakh and also purchased an immovable property for Rs. 39 Lakh, notice under section 148 of the Act was issued on 24.03.2023, as it was required to compute the total income of the assessee and was also required to examine the source of investment for purchasing the immovable ITA No.2887/PUN/2024 (A.Y. 2016-17) 3 property. Subsequently, statutory notices under section 142(1) were also issued to the assessee. Despite the grant of multiple opportunities, the assessee neither filed any return in response to the notice issued under section 148 of the Act nor filed any response to the statutory notices issued under section 142(1) of the Act. Accordingly, the Assessing Officer (“AO”) proceeded to make the assessment under section 144 of the Act on the basis of the material and information available on record. Vide order dated 26.02.2024 passed under section 147 r.w.s. 144 of the Act, the AO computed the total income of the assessee at Rs.1.37 crore after making an addition of Rs.98 Lakh as short term capital gain in respect of the consideration received by the assessee from the sale of the immovable property. Further, the AO also considered the purchase consideration of the immovable property of Rs.39 Lakh as an unexplained investment and added the same to the total income of the assessee under section 69 of the Act. 4. The learned CIT(A), vide impugned order, dismissed the appeal filed by the assessee on the basis that, as per the provisions of section 249(4) of the Act, in case the assessee did not file return of income, it is required to pay the amount of advance tax. However, in the instant case, as the assessee neither filed the return of income nor paid the amount equal to the amount of advance tax due on its income and there was also no request from the assessee for seeking exemption from the operation of the provisions of section 249(4)(b) of the Act, the learned CIT(A) held that the appeal filed by the assessee is not admissible. Being aggrieved, the assessee is in appeal before us. ITA No.2887/PUN/2024 (A.Y. 2016-17) 4 5. During the hearing, the learned Authorized Representative (“learned AR”), inter alia, submitted that given an opportunity the assessee will file necessary application in compliance of the provision of section 249(4)(b) of the Act for seeking exemption from the learned CIT(A) from the operation of the provisions of section. 6. Accordingly, we deem it appropriate to set aside the impugned order and restore the appeal to the file of the learned CIT(A), granting one more opportunity to the assessee to make necessary compliance with the provisions of section 294(4) of the Act before the learned CIT(A). The learned CIT(A) is directed to consider any such request from the assessee in accordance with law and proceed accordingly. We order accordingly. As the matter is being restored to the learned CIT(A) for consideration afresh, the other grievances raised by the assessee in the present appeal do not call for adjudication at this stage. As a result, the grounds raised by the assessee are allowed for statistical purposes. 7. In the result, the appeal by the assessee is allowed for statistical purposes. Order pronounced in the open Court on 10/07/2025 Sd/- NARENDRA KUMAR BILLAIYA ACCOUNTANT MEMBER Sd/- SANDEEP SINGH KARHAIL JUDICIAL MEMBER MUMBAI, DATED: 10/07/2025 Prabhat ITA No.2887/PUN/2024 (A.Y. 2016-17) 5 Copy of the order forwarded to: (1) The Assessee; (2) The Revenue; (3) The PCIT / CIT (Judicial); (4) The DR, ITAT, Mumbai; and (5) Guard file. By Order Assistant Registrar ITAT, Mumbai "