Smitaben Rajnikant Dave Legal Rep. Kalaen R. Joshi, Ahmedabad V. The ITAO, Ward-6(1)(4), Ahmedabad

ITA 1119/AHD/2023

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 7710 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-04-2024
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: SMC
• Next Hearing Date: 21-04-2024
• Assessment Year: 2011-2012
• Appeal Filed On: 26-12-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: URJIT B. SHAH
• Keywords: Unexplained investment; Principle of natural justice
• Section: 148; 144; 142(1); 143(2); 139(1)

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD “SMC” BENCH Before: Ms. Suchitra Kamble, Judicial Member Smitaben Rajnikant Dave, Legal Representative Kalaben Rameshchandra Joshi, 14, Panchsheel Apts, N/R. Jaihind School Bhaira, Maninagar, Ahmedabad PAN: AIDPJ3581E (Appellant) Vs The Income Tax Officer, Ward-6(1)(4), Ahmedabad (Respondent) Assessee by: Shri A.P. Nanavaty, A.R. Revenue by: Shri Urjit B. Shah, Sr. D.R. Date of hearing : 22-04-2024 Date of pronouncement : 24-04-2024 आदेश/ORDER This is an appeal filed against the order dated 05-10- 2023 passed by National Faceless Appeal Centre (NFAC), Delhi for assessment year 2011-12. 2. The grounds of appeal are as under:- ITA No. 1119/Ahd/2023 Assessment Year 2011-12 I.T.A No. 1119/Ahd/2023 A.Y. 2011-12 Page No. Smitaven Rajnikant Dave Legal Representative Kalaben R. Joshi vs. ITO 2 “1. LD AO and LD CIT(A) both had erred in framing assessment and appellate order against non-existent (Dead) Person hence assessment order is null and void. 2. LD AO has issued notices to assessee when assessee herself was not existing hence assessment order is null and void. 3. LD AO has not served any notices to any of the legal representative of the assessee hence assessment order is null and void. 4. LD AO has not disclosed reasons for reopening and the whole of proposal of reopening in show cause notice or in assessment order therefore assessment order is violating rule of natural justice therefore also assessment order is null and void. 5. LD AO has not issued any notice u/s 143(2) of the IT Act, 1961 neither assessment order nor appellate order refers to notice u/s 143(2) of the IT Act, 1961 therefore there is no notice u/s 143(2) of the IT Act, 1961 and therefore assessment is null and void.” 3. The Assessing Officer observed that the assessee entered into substantial financial transactions and made time deposit of Rs. 9,00,000/- in her bank account maintained with Bank of India and also received interest of Rs. 11,644/- during the year under consideration,. The assessee did not file return of income as required u/s. 139(1) of the Act. Accordingly, the case was reopened after recording reason and getting necessary approval. Notice u/s. 148 of the Act was issued on 23-03-2018 and duly served upon the assessee. The assessee did not file return of income in response to notice u/s. 148 of the Act. The assessee provided reason for reopening of assessment. Notice u/s. 142(1) containing questionnaire was issued on 17-08-2018 which was duly served upon the assessee. The assessee did not respond the same. The I.T.A No. 1119/Ahd/2023 A.Y. 2011-12 Page No. Smitaven Rajnikant Dave Legal Representative Kalaben R. Joshi vs. ITO 3 Assessing Officer finalized the order u/s. 144 r.w.s. 147 of the Act and accordingly the amount of Rs. 9,00,000/- which is time deposit and Rs. 11,644/- as bank interest received was added to the total income of the assessee treating the same as unexplained investment. 4. Being aggrieved by the assessment order, the assessee filed appeal before the CIT(A). The CIT(A) dismissed the appeal of the assessee. 5. There is a delay of 23 days in filing the present appeal before the Tribunal for which the assessee has given explanation which appears to be reasonable. Hence, the delay in filing the appeal before the Tribunal is condoned. 6. At the time of hearing the ld. A.R. submitted that the CIT(A) has passed ex-parte order and the tax consultant before the CIT(A) has not filed Form 35 in the name of legal heir of the assessee who died on 14-05-2015. The legal heir has filed the affidavit to the present tax consultant which is taken on record. The ld. A.R. submitted that the matter may be remanded back to the file of the CIT(A) for proper adjudication of the issues on merit. I.T.A No. 1119/Ahd/2023 A.Y. 2011-12 Page No. Smitaven Rajnikant Dave Legal Representative Kalaben R. Joshi vs. ITO 4 7. The ld. D.R. relied upon the assessment order and the order of the CIT(A). 8. Heard both the parties and perused all the relevant materials available on record. As regards ground no. 1 to 4, the said ground does not survive as the assessee has not informed the Department about the death of the assessee. Hence, the ground nos. 1 to 4 are dismissed. As regards ground no. 5, the same is on merit and since the appeal contested by the assessee, CIT(A) has not taken cognizance of the merits of the case, the matter is remanded back to the file of the CIT(A) for proper adjudication of the issues as per income tax statutes on merits. The assessee is directed to file revised Form No. 35 through legal heir before the CIT(A). Needless to say, the assessee be given opportunity of hearing by following principles of natural justice. 9. In the result, the appeal of the assessee is partly allowed for statistical purposes. Order pronounced in the open court on 24-04-2024 Sd/- (SUCHITRA KAMBLE) JUDICIAL MEMBER Ahmedabad : Dated 24/04/2024 I.T.A No. 1119/Ahd/2023 A.Y. 2011-12 Page No. Smitaven Rajnikant Dave Legal Representative Kalaben R. Joshi vs. ITO 5 आदेश क त ल प अ े षत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Ahmedabad 6. Guard file. By order/आदेश से, उप/सहायक पंजीकार आयकर अपील य अ धकरण, अहमदाबाद