INCOME TAX OFFCIER, KALYAN V. VINOD KISHAN NENWANI, ULHASNAGAR

ITA 3289/MUM/2025

AI Insights

The case involves an appeal by the Revenue against the order of the learned Commissioner of Income Tax (Appeals), which had allowed the appeal of the assessee, Vinod Kishan Nenwani, by adjudicating on the issue of agricultural income. This issue was not part of the original assessment order and was raised for the first time during the appellate proceedings. The Revenue contended that the CIT(A) exceeded his jurisdiction by addressing this unassessed issue and failed to call for a remand report, thus vitiating the order. The Tribunal agreed with the Revenue's position, noting that the CIT(A)'s decision was based on grounds not considered during the assessment, and thus restored the matter to the AO for a fresh assessment.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 668735 (ITAT-MUMBAI)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-06-2025
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2018-2019
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: KAVITHA KAUSHIK; CALLING A REMAND REPORT
• Keywords: Set aside; Capital asset; Additional evidence
• Section: 143(3); 142(1)

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL “F” BENCH, MUMBAI BEFORE SHRI NARENDRA KUMAR BILLAIYA, ACCOUNTANT MEMBER SHRI SANDEEP SINGH KARHAIL, JUDICIAL MEMBER ITA No.3289/MUM/2025 (Assessment Year : 2018-19) ITO – 2(2), 2nd Floor, Mohan Plaza, Wayle Nagar, Khadakpada, Kalyan West, Thane Maharashtra - 421301 ............... Appellant v/s Vinod Kishan Nenwani, 102, Anand Villa, Near Shalimar Society, Ulhasnagar, Thane – 421003 PAN : AAKPN0051C ……………… Respondent Assessee by : None Revenue by : Ms. Kavitha Kaushik, Sr.DR Date of Hearing – 24/06/2025 Date of Order - 24/06/2025 O R D E R PER SANDEEP SINGH KARHAIL, J.M. The Revenue has filed the present appeal against the impugned order dated 20/02/2025, 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 2018-19. 2. When this appeal was called for hearing, neither anyone appeared on behalf of the assessee, nor any application seeking adjournment was filed. ITA No.3289/Mum/2025 (A.Y. 2018-19) 2 From the perusal of the record, we find that the notice sent to the assessee through registered post was also returned unserved. Therefore, we proceed to decide the present appeal on the basis of material available on record and after hearing the learned Departmental Representative (“learned DR”). 3. In this appeal, the Revenue has raised the following grounds: - “1. On the facts and in circumstances of the case and in law, the Ld. CIT(A) exceeded his jurisdiction by adjudicating the contention of the appellant on the issue of agricultural income which was never a part of the assessment order as the assessee had raised the issues for the first time during the appellate proceedings, thereby bringing the order of the Ld. CIT(A) under the ambit of perversity. 2. On the facts and in circumstances of the case, the Ld. CIT(A) has failed to discuss the issue of additional evidences filed during the course of appellate proceedings, by failing to appreciate that the issues were raised for the first time by the assessee and were not part of the assessment order, thereby exceeding his jurisdiction. 3. On the facts and in circumstances of the case, the Ld. CIT(A) has violated the provisions of Rule 46A by not calling for a remand report, thereby vitiating the order of the Ld. CIT(A). 4. The order of the Ld. CIT(A) may be vacated and that of the Assessing Officer may be restored.” 4. During the hearing, the learned DR submitted that the learned CIT(A) allowed the appeal filed by the assessee by adjudicating the contention which was never a part of the assessment order nor was any opportunity granted to the Revenue by calling for a remand report. 5. We have considered the submissions of the learned DR 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 filed his return of income on 27.07.2018, declaring a total income of Rs.7,44,150/-. The return filed by the assessee was selected for limited scrutiny under CASS on the basis that ITA No.3289/Mum/2025 (A.Y. 2018-19) 3 the value of the property purchased by the assessee is less than the value as per the stamp authority. Accordingly, statutory notices under section 143(2) and section 142(1) were issued and served on the assessee. As per the information submitted by the Sub-Registrar Office, the assessee purchased property for a total consideration of Rs.9 lakh, however, the value as per the stamp duty authority of the said property was Rs.2,76,58,000/-. Accordingly, the assessee was asked to show cause as to why the difference between the sale consideration paid and the value as per the stamp duty authority should not be brought to tax as per the provisions of section 56(2)(x) of the Act. After considering the submissions of the assessee, the Assessing Officer (“AO”) vide impugned order dated 23.02.2021 passed under section 143(3) r.w. section 143(3A) and section 143(3B) of the Act disagreed with the submissions of the assessee and considered the difference between the sale consideration paid and the value as per the stamp duty authority amounting to Rs.2,67,58,000/- as income of the assessee under the head “income from other sources” under section 56(2)(x) of the Act. 6. We find that the learned CIT(A) vide impugned order allowed the appeal filed by the assessee on the basis that the property under consideration is an agricultural land, and therefore, is not a capital asset. Therefore, the learned CIT(A) held that the provisions of section 56(2)(x) of the Act are not applicable to the present case. Accordingly, the learned CIT(A) directed the AO to delete the addition of Rs.2,67,58,000/- made under section 56(2)(x) of the Act. 7. From the perusal of the impugned order, we find that the basis on which the learned CIT(A) granted relief to the assessee was neither pleaded by the ITA No.3289/Mum/2025 (A.Y. 2018-19) 4 assessee nor the same was under consideration during the assessment proceedings. It is evident from the record that during the assessment proceedings, the entire deliberation was on computing the income of the assessee as per the provisions of section 56(2)(x) of the Act. We further find that the learned CIT(A) did not seek any remand report from the AO on its finding regarding treating the land as agricultural land, and therefore, not a capital asset. Accordingly, we deem it appropriate to restore this issue to the file of the Jurisdictional AO for de novo consideration, as per law, after granting adequate and reasonable opportunity of hearing to the assessee. Accordingly, with the above direction, the impugned order is set aside and the grounds raised by the Revenue are allowed for statistical purposes. 8. In the result, the appeal by the Revenue is allowed for statistical purposes. Order pronounced in the open Court on /06/2025 Sd/- NARENDRA KUMAR BILLAIYA ACCOUNTANT MEMBER Sd/- SANDEEP SINGH KARHAIL JUDICIAL MEMBER MUMBAI, DATED: /06/2025 Prabhat 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 "