CREATIVE REALMART PRIVATE LIMITED,JAIPUR V. INCOME TAX OFFICER WARD-3(5), JAIPUR

ITA 457/JPR/2025

AI Insights

The case involves M/s. Creative Realmart Private Ltd., which appealed against the order of the Commissioner of Income Tax, National Faceless Appeal Centre, Delhi, for the assessment year 2014-15. The primary contention was regarding the non-admission of their appeal due to alleged non-compliance with the payment of advance tax and the filing of return in response to notice under section 148 of the Income Tax Act. The Tribunal noted procedural lapses and the need for a fair hearing, leading to the restoration of the case to the CIT(A) for a comprehensive review.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 785067 (ITAT-JAIPUR)
• Duration Of Justice: 7 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-11-2025
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 25-03-2025
• Other Referred Cases: Union of India vs Ashish Agarwal
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ANITA RINES H
• Assessee Lawyers: PRATEEK KEDAWAT
• Keywords: Opportunity of being heard; Principle of natural justice; Search and seizure; Accommodation entries; Opportunity of cross examination; Bogus
• Section: 147; 148; 143(3); 68

Judgement Text

"vk;djvihyh; vf/kdj.k] t;iqjU;k;ihB] t;iqj IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,’’A” JAIPUR Mk0 ,l- lhrky{eh]U;kf;dlnL; ,oaJhjkBksMdeys'kt;UrHkkbZ] ys[kk lnL; ds le{k BEFORE: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;djvihyla-@ITA No.457/JPR/2025 fu/kZkj.ko\"kZ@AssessmentYear : 2014-15 M/s. Creative Realmart Private Ltd. 67, Shivraj Niketan Colony Near Vaishali Nagar, Jaipur- 302 001 cuke Vs. The ITO Ward 3(5) Jaipur LFkk;hys[kk la-@thvkbZvkjla-@PAN/GIR No.: AADCC 1019P vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksjls@Assesseeby : Shri Prateek Kedawat, CA jktLo dh vksjls@Revenue by: Mrs. Anita Rinesh, JCIT (DR) lquokbZ dh rkjh[k@Date of Hearing : 10/11/2025 mn?kks\"k.kk dh rkjh[k@Date of Pronouncement : 12 /11 /2025 vkns'k@ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM This appeal filed by the assessee is directed against the order of the learned Commissioner of Income Tax, National Faceless Appeal Centre, Delhi [ for short CIT(A) ] dated 27-01-2025, for the assessment year 2014- 15 raising therein following grounds of appeal:- ‘’1. That on the law and facts & circumstances of the case the Ld CIT (Appeals) NFAC failed to appreciate the fact that the appellant has filed return in response to the notice u/s 148 and hence the appellant was not liable to deposit advance tax before filing of appeal in Form-35 and appellant has not done any non-compliance as per section 249(4)(b) of the Income-tax Act, 1961 Printed from counselvise.com 2 ITA NO.457/JPR/2025 M/S. CREATIVE REALMART PVT LTD VS ITOM WARD 3(5), JAIPUR 2. That Ld. Lower Authority Initiated the proceeding under section 147 and issued Notice under section 148 for which reason recorded were not correct and does not exist and on other legal grounds which is illegal and bad and the finding of the Ld Lower Authority is without material, contrary to the material on record, perverse, vitiated and against the principle of natural justice, illegal and void 3 That the Ld. Lower Authority Initiated the proceeding under section 147 and issued Notice Under section 148 which is time barred by operation of law. 4. That the Ld. Lower Authority has initiated the proceedings and sound the notice under section 148 without obtaining the prior approval of the specified authority under the provisions of the Act, which is illegal, void and bad in law. 5. That the Ld Lower Authority has wrongly, arbitrarily and illegally rejected the objection of the appellant company regarding issue of notice u/s 148, in spite of the facts that the basic facts of the case were wrongly mentioned or the Ld Lower Authority was not having correct information about the transaction and even the detail and documents asked were not provided. 6. The Ld. Lower Authorities relied on the statements of stranger which is not correct and bad in law, void against natural justice. 7. That the Ld. Lower Authority has not provided the opportunity of Cross examination to the appellant company 8. That the Ld. Lower Authorities grossly erred in making an additions Rs. 1,10,00,000 which was received as unsecured loan and the identity, genuineness and credit worthiness of the transaction was proved by the appellant company, which in illegal, unjustified, excessive and without any basis and bad in law and deserved to b of deleted. 9. That there was no material available with the Ld Lower Authority to prove the allegation that the appellant company has paid rush and have taken the accommodation entries 10. That the Ld. Lower Authorities grossly erred in making an addition of Ra 4,55,968/- of interest which was paid on such loan which is incorrect, illegal unjustified, excessive and without any basis and had in law and deserved to be deleted 11. That the Ld. Lower Authorities grossly erred in applying the Person of section 115BBE, which is incorrect, illegal, unjustified, excessive and without any basis and bad in law and deserved to be deleted. ‘’ Printed from counselvise.com 3 ITA NO.457/JPR/2025 M/S. CREATIVE REALMART PVT LTD VS ITOM WARD 3(5), JAIPUR 2.1 Apropos grounds of appeal of the assessee, it is noticed that the ld.CIT(A) passed an ex-parte order by dismissing the appeal of the assessee on account of non-filing the return in response to notice u/s 148 of Income Tax as well as not paid an amount equal to the amount of advance which was payable by the assessee. The relevant observations made by the ld.CIT(A) at para 4 to 7 of his order are reproduced as under:- ‘’4. in this regard, it would not be out of place to mention here that it is assessed income and not income, claimed to have been earned by the appellant, is the basis for computation of an amount equal to the amount of advance tax which is to be paid at the time of filing of appeal, Provisions of section 249(4)(a) and 249(4)(b) of Income Tax Act, in this regard, are very speaking and compulsory in nature in as much as their compliance is must before admission of appeal. Whereas provisions of section 249(4)(a) of the Act say that tax is to be paid on returned income where ITR has been filed, provisions of section 249(4)(b) are to be construed so as to compute the amount equal to the amount of advance tax on the basis of assessed income as no ITR was filed by the appellants. The non- filers cannot be treated in a more advantageous manner in comparison to ITR- filers so that non-filers can avoid payment of an amount equal to the amount of advance tax, claiming that their income was below taxable limit 5 The appellant has offered Not applicable comments at sl No 9 of Form-35 and the appellant failed to make payment of amount equal to the advance tax which was due on its income. It is, therefore, clear that information, given at sl no 9 of Form-35 is not correct and the appellant has not made payment of amount equal to the advance tax which was due on its income. The appellant has also not requested for exemption from operation of the provisions of clause (b) of sub- section (4) of section 249 of the Act. Since the appellant has not fled return in response of notice is 148 of income as well as not paid an amount equal to the amount of advance tax which was payable by present appeal is not liable to be admitted. The appeal is infructuous and is therefore, dismissed. 7 The appeal is dismissed.’’ Printed from counselvise.com 4 ITA NO.457/JPR/2025 M/S. CREATIVE REALMART PVT LTD VS ITOM WARD 3(5), JAIPUR 2.2 During the course of hearing, the ld. AR of the assessee submitted that the ld. CIT(A) has passed an ex-parte order without providing an opportunity to cross examine the other party (i.e. Banka Group) as the addition made by the AO amounting to Rs.1,14,55,968 (Rs.1,10,00,000/- as Principal Plus Rs.4,55,968/- as Interest) is not justified and thus the issue may be restored to the file of the ld. CIT(A) for afresh adjudication as the return of assessee company is in loss and further submitted that the addition made by the AO amounting to amounting to Rs.1,14,55,968 (Rs.1,10,00,000/- as Principal Plus Rs.4,55,968/- as Interest) does not pertain to the assessee. He further submitted that the assessee had filed the return in response to notice u/s 148 and thus the assessee is not liable to deposit advance tax before filing of appeal in Form 35 and the assessee has not done any non-compliance as per Section 249(4)(b) of the Income Tax Act. 2.3 On the other hand, the ld.DR supported the orders of the lower authorities. 2.4 We have heard both the parties and perused the materials available on record. Brief facts of the case are that the assessee company filed original return of income for the assessment year 2014-15 on 28-09-2014 Printed from counselvise.com 5 ITA NO.457/JPR/2025 M/S. CREATIVE REALMART PVT LTD VS ITOM WARD 3(5), JAIPUR declaring total loss of Rs.(-) 4,51,023/-. The assessee company is engaged in the business of real estate. No scrutiny assessment u/s 143(3) of the Act was completed. Thereafter notice u/s 148 of the Act was issued to the assessee on 09-04-2021 and in compliance to this notice, the assessee filed return of income on 29-04-2021 and in this return of income the assessee showed similar income as was shown in the return of income filed u/s 139(1) of the Act. The subject matter of issuing notice after 31-03- 2021 on the basis of pre-amended provisions of Section 148 of the Act resulted into large scale litigation and all over India various Writ Petitions were filed and the matter travelled to Supreme Court against decision pronounced by various High Courts. The Hon’ble Supreme Court vide its judgement dated 04-05-2022 (2022 SSC online SC 543) in the case of Union of India vs Ashish Agarwal held that the notice issued u/s 148 between 01-04-2021 to 30-06-2021 of the Act was deemed to have been issued u/s 148A of the Act and should have been treated as show cause notice in terms of Section 148A(b) of the Act. Further, the Assessing Officer were also directed to provide the information and documents which were relied upon while recording reasons for reopening of the assessment. Accordingly, as per the directions issued by the Hon’ble Supreme Court of India, the assessee was provided an opportunity by the Department to file Printed from counselvise.com 6 ITA NO.457/JPR/2025 M/S. CREATIVE REALMART PVT LTD VS ITOM WARD 3(5), JAIPUR reply. It is further noted that in this case order u/s 148A(d) was passed by the Jurisdictional Assessing Officer on 26-07-2022 and new notice u/s 148 of the Act was issued to the on 26-07-2022 requiring the assessee to file the return of income for which the assessee filed the return of income and thus showed similar income as shown in the return of income filed u/s 139(1) of the Act. It is noted that the case was reopened on the basis of certain specific information available with the Department which was received through DDIT (Investigation),Unit (3), Kolkata that a search and seizure action in the case of Bank Group was carried out by the Investigation Wing of Department on 21-05-2018 resulting into collection of evidences and recording of the statements of various persons including Shri Mukesh Banka. During the investigation, it was revealed that Mukesh Banka Group, a leading entry provider through bank account of concerns is indulged in providing accommodation entries in the nature of bogus unsecured loans or in other forms in lieu of cash from the interested beneficiaries. The Investigation wing observed that the assessee under consideration is also one of the beneficiaries who have obtained the accommodation entries from various concerns of above group. During the course of analysis and examination of bank statements of paper/ shell companies of Banka Group, the entire scheme of arrangement regarding Printed from counselvise.com 7 ITA NO.457/JPR/2025 M/S. CREATIVE REALMART PVT LTD VS ITOM WARD 3(5), JAIPUR the withdrawal of cash from various bank accounts of paper / shell companies of Shri Mukesh Banka was clearly established and substantiated. The statement of Shri Mukesh Banka was recorded u/s 131/132(3) of the Act, enquiry conducted by the Investigation Wing and establishment beyond doubt that Fundiea Vinimay Pvt.Ltd, Mangalsudha Builders Pvt. Ltd and Subhkari Marketing Pvt. Ltd were the paper/ shell companies run and controlled by Shri Mukesh Banka which were involved in providing accommodation entries through unsecured loans. The AO noted that assessee is the beneficiary of these bogus accommodation entries in the guise of unsecured loan amounting to Rs.1,14,55,968/- (Rs.1,10,00,000/- as Principal Plus Rs.4,55,968/- as Interest) which were credited in the books of assessee during F.Y. 2013-14. Therefore, the AO made an addition of Rs.1,14,55,968/- in the hands of the assessee u/s 68 as Cash Credits in the total income declared by the assessee in return of income. In first appeal, the ld. CIT(A) dismissed the appeal of the assessee by observing that the assessee has not filed return of income u/s 148 of the Act as well as not paid an amount equal to the amount of advance tax which was payable by the assessee. The Grievance of the assessee is that the assessee that finding of the ld. CIT(A) that the has not paid an amount equal to the amount of advance tax which was payable by Printed from counselvise.com 8 ITA NO.457/JPR/2025 M/S. CREATIVE REALMART PVT LTD VS ITOM WARD 3(5), JAIPUR the assessee and thereby he has not admitted that appeal. As is evident from the record that the assessee filed ITR having loss and therefore, there is no finding on whether the assessee in that case was liable to pay advance tax or not and in case of loss and ld. DR did not place any contrary liability of the assessee on advance tax. In view of the above facts and circumstances, the Bench is of the view that lis between the parties has to be decided on merits so that nobody’s rights could be scuttled down without providing opportunity of being heard to the assessee. Hence, the matter is restored to the file of the ld. CIT(A) to decide it afresh by providing one more opportunity of hearing, however, the assessee will not seek any adjournment on frivolous ground and remain cooperative during the course of proceedings. Thus, the appeal of the assessee is allowed for statistical purposes. 2.6 Before parting, we may make it clear that our decision to restore the matter back to the file of the ld. CIT(A) shall in no way be construed as having any reflection or expression on the merits of the dispute, which shall be adjudicated by ld. CIT(A) independently in accordance with law. Printed from counselvise.com 9 ITA NO.457/JPR/2025 M/S. CREATIVE REALMART PVT LTD VS ITOM WARD 3(5), JAIPUR 3.0 In the result, the appeal of the assessee is allowed for statistical purposes Order pronounced in the Open Court on 12 /11/2025. Sd/- Sd/- ¼Mk0 ,l- lhrky{eh ½ ¼jkBksM deys'kt;UrHkkbZ ½ (DR. S. SEETHALAKSHMI) (Rathod Kamlesh Jayantbhai) U;kf;dlnL;@Judicial Member ys[kklnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 12 /11/2025 *Mishra vkns'k dh izfrfyfivxzsf’kr@Copy of the order forwarded to: 1. The Appellant- M/s. Creative Realamart Private Ltd. Jaipur 2. izR;FkhZ@ The Respondent- The ITO, Ward 3(5), Jaipur 3. vk;djvk;qDr@ Theld CIT 4. foHkkxh; izfrfuf/k] vk;djvihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur 5. xkMZQkbZy@ Guard File (ITA No.457/JPR/2025) vkns'kkuqlkj@ By order, lgk;diathdkj@Asstt. Registrar Printed from counselvise.com "