FIERO FERNANDES,MUMBAI V. JURISDICTION WARD 42(2)(2), MUMBAI

ITA 23/MUM/2025

AI Insights

The case involves an appeal by Fiero Fernandes against the order passed by the Commissioner of Income Tax (Appeals), which confirmed various additions to the assessee's income for the Assessment Year 2015-16. The primary contention was the improper issuance of a notice under section 148 of the Income Tax Act, 1961, by the Jurisdictional Assessing Officer instead of the National Faceless Assessment Centre, as required post the amendment by section 151A. Additionally, the assessee challenged the additions made to his income, arguing that the sources of payment for the property purchased were adequately explained and documented. The Tribunal found that the CIT(A) had dismissed the appeal ex-parte without adjudicating on the merits, which was against the principles laid down by the Bombay High Court in CIT v/s Premkumar Arjundas Luthra (HUF).

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 474402 (ITAT-MUMBAI)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-02-2025
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: H
• Assessment Year: 2015-2016
• Other Referred Cases: CIT v/s Premkumar Arjundas Luthra (HUF)
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PRAVIN SALUNKHE
• Assessee Lawyers: CHAITEE LONDHE
• Keywords: Set aside; Sale consideration of property below Jantri Value
• Section: 148; 250; 56(2)(vii)(b); 69

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI “H” (SMC) BENCH, MUMBAI BEFORE SHRI SANDEEP SINGH KARHAIL, JM AND SHRI GIRISH AGRAWAL, AM आयकर अपील सं./ITA No.23/MUM/2025 (िनधाᭅरण वषᭅ / Assessment Year :2015-2016) Fiero Fernandes 1202 Lourdes Heritage, Opposite Our Lady of Lourdes Church, Orlem Malad West Mumbai Vs. ITO, Ward-42(2)(2), Mumbai ̾थायी लेखा सं./PAN No. : AASPF 3097 Q (अपीलाथᱮ /Appellant) .. (ᮧ᭜यथᱮ / Respondent) िनधाŊįरती की ओर से /Assessee by : Ms. Chaitee Londhe, AR राज᭭व कᳱ ओर से /Revenue by : Shri Pravin Salunkhe, Sr.DR सुनवाई कᳱ तारीख / Date of Hearing : 12/02/2025 घोषणा कᳱ तारीख/Date of Pronouncement : 14/02/2025 आदेश / O R D E R Per Sandeep Singh Karhail, JM : The present appeal has been filed by the assessee challenging the impugned order dated 05/11/2024 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 2015-16. 2. In this appeal, the assessee has raised the following grounds: - 1. The learned Commission of Income Tax (Appeals) disregarded the fact that the learned Assessing Officer erred in assuming jurisdiction and framing the assessment for the following reasons : (a) in terms of section 151A of the Income Tax Ac 1961 (\"the Act\"), ITA No.23/Mum/2025 Fiero Fernandes 2 notice under section 148 of the Act could only be issued by the National Faceless Assessment Centre (\"NFAC\") and not by the Jurisdictional Assessing Officer (\"JAO\") (b) The notice under section 148 of the Act could have been issued only before the limitation expired according to the provisions of section 149 as they stood prior to 1st April, 2021 and therefore the notice under section 148 issued to the Appellant was bad in law. Consequently, the assessment was bad in law and deserves to be quashed. 2. Without prejudice to the above ground, the learned Commissioner of Income Tax (Appeals) erred in facts and in law in confirming the addition of Rs. 9,88,000/- made by the learned Assessing Officer to the returned income of the Appellant. 3. The learned Commissioner of Income Tax (Appeals) erred in facts and in law In passing the impugned appellate order, without taking into consideration the documents already on record before the lower authorities. 4. The learned Commissioner of Income Tax (Appeals, erred In facts and in law in confirming the addition of Rs. 6,00,000/- made under section 69 of the Act, without appreciating that the sources of payment towards the entire purchase consideration were fully explained and were evident from the documents. 5. The learned Commissioner of Income Tax Appeals) erred in facts and in law in not appreciating the write a sum of Rs, 25 lakhs was paid by the Appellant towards purchase consideration, the balance consideration was entirely paid by the other co-owner of the property. 6. The learned Commissioner of Income Tax (Appeals) erred in facts and in law in confirming the addition of Rs. 3,88,000/- under section 56/2)(vil) of the Act. ITA No.23/Mum/2025 Fiero Fernandes 3 7. Without prejudice to the above ground and strictly in alternative, the learned Commissioner of Income Tax(Appeals) erred in not appreciating that the difference between the stamp duty value and the purchase consideration is less than 10% of the purchase consideration and as upheld by various judicial for a, the amendment to section 56(2)(x) of the Act w.e.f. 01.04.2019 prescribing a price band of 10% being curative and beneficial in nature, would apply retrospectively to section 56(2)(vii)(b) of the Act as well. 8. The appellant previously to add alter or amend any of the grounds of appeal prior to or at the time of hearing. 3. We have considered the submissions of both sides and perused the material available on record. In the present case, at the outset, it is evident that the learned CIT(A) has passed the order ex-parte due to the non-appearance of/on behalf of the assessee. We further find that the learned CIT(A) merely on the basis of non-compliance with notices, dismissed the appeal filed by the assessee without adjudicating the grounds raised by the assessee on merits, as required under section 250(6) of the Act. We find that in CIT v/s Premkumar Arjundas Luthra (HUF), reported in [2016] 69 taxmann.com 407 (Bombay), the Hon’ble Jurisdictional High Court held that Commissioner (Appeals) cannot dismiss the appeal on account of non-prosecution of appeal by the assessee. Consequently, we deem it fit and proper to set aside the impugned order and restore the matter to the file of the learned CIT(A) for de novo adjudication of the appeal on merits. We further direct that no order shall be passed without affording reasonable opportunity of hearing to the parties. The assessee is directed to appear before the learned CIT(A) on all the hearing dates as may be fixed without any default. As ITA No.23/Mum/2025 Fiero Fernandes 4 the matter is being restored to the file of the learned CIT(A) for adjudication on merits, the other grievances raised by the assessee in the present appeal do not call for adjudication at this stage. Accordingly, grounds raised by the assessee are allowed for statistical purposes. 4. In the result, the appeal by the assessee is allowed for statistical purposes. Order pronounced in the open court on 14/02/2025. Sd/- (GIRISH AGRAWAL) Sd/- (SANDEEP SINGH KARHAIL) लेखा सद᭭य / ACCOUNTANT MEMBER ᭠याियक सद᭭य / JUDICIAL MEMBER मुंबई/ Mumbai; ᳰदनांक Dated 14/02/2025 Prakash Kumar Mishra, Sr.P.S.(on tour) आदेश कᳱ ᮧितिलिप अᮕेिषत/Copy of the Order forwarded to : आदेशानुसार/ BY ORDER, (Assistant Registrar) आयकर अपीलीय अिधकरण, मुंबई/ ITAT, Mumbai 1. अपीलाथᱮ / The Appellant- . Fiero Fernandes 1202 Lourdes Heritage, Opposite Our Lady of Lourdes Church, Orlem Malad West Mumbai 2. ᮧ᭜यथᱮ / The Respondent- ITO, Ward-42(2)(2), Mumbai 3. आयकर आयुƅ(अपील) / The CIT(A), 4. आयकर आयुᲦ / CIT 5. िवभागीय Ůितिनिध, आयकर अपीलीय अिधकरण, मुंबई / DR, ITAT, Mumbai 6. गाडᭅ फाईल / Guard file. स᭜यािपत ᮧित //True Copy// "