Nisschal Jain, Noida V. ITO WARD - 21(2), New Delhi

ITA 558/DEL/2021

AI Insights

This case involves an appeal by Nisschal Jain against the order of the Commissioner of Income Tax (Appeals)-7, New Delhi, which was dated 23/07/2019 for the Assessment Year 2011-12. The primary contention was the issuance and handling of notices under sections 148 and 151 of the Income Tax Act, 1961, and the subsequent ex-parte order that added Rs. 3,05,62,725 as unexplained investment in immovable property. The assessee argued that the actions taken were unjust, illegal, and arbitrary, lacking proper jurisdiction and procedural adherence. The Tribunal found merit in the assessee's claim of not being given a fair hearing and thus remanded the case for a fresh evaluation.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 130787 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 2 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2023
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: G
• Next Hearing Date: 30-07-2023
• Assessment Year: 2011-2012
• Appeal Filed On: 23-05-2021
• Laws Referred To: Income Tax Act 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Opportunity of being heard; Principle of natural justice
• Section: 148; 154

Judgement Text

Page 1 of 5 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘G’: NEW DELHI BEFORE, SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI YOGESH KUMAR U.S., JUDICIAL MEMBER ITA No.558/Del/2021 (ASSESSMENT YEAR 2011-12) Nisschal Jain 801, Pearl Gateway Tower Sector-44 Noida-201 301 PAN-AFAPJ 4971Q Vs. Income Tax Officer Ward-21(2) New Delhi (Appellant) (Respondent) Appellant by Mr. Santosh Pathak, Advocate Respondent by Mr. Anuj Garg, Sr. DR Date of Hearing 31/07/2023 Date of Pronouncement 08/08/2023 ORDER PER YOGESH KUMAR U.S., JM: This appeal by Assessee is filed against the order of Learned Commissioner of Income Tax (Appeals)-7, New Delhi [Ld. CIT(A)”, for short], dated 23/07/2019 for Assessment Year 2011-12. Grounds taken in this appeal are as under: “1. Action of Commissioner of Income Tax (Appeals) in passing ex- parte order without giving proper opportunity of being heard is unjust, illegal, arbitrary and against the facts and circumstances of the case. 2. Action of CIT(A) in approving ITA No.558/Del/2021 Nisschal Jain vs. ITO Page 2 of 5 (a) Action of Assessing Officer in issuing notice u/s 148 of IT Act 1961 without jurisdiction is unjust, illegal, arbitrary and against the facts and circumstances of the case. (b) Action of Assessing Officer in proceeding in this case without serving notice u/s 148 of the Income Tax Act is unjust, illegal, arbitrary and against the facts and circumstances of the case. (c) Action of Assessing Officer in passing ex-parte order without considering the circumstances of the case and without considering the information available with his is unjust, illegal, arbitrary and against the facts and circumstances of the case. 3. Action of CIT(A) in approving the action of Assessing Officer not satisfying the procedure followed for issuance of notice issued u/s 148 r.w.s 151 of Income Tax Act 1961 and assuming jurisdiction for passing order u/s 144/147 is illegal ad in law and void ab initio. 4. Action of CIT(A) in confirming the addition made by Assessing Officer Rs.3,05,62,725/- as unexplained investment is unjust illegal arbitrary and against the facts and circumstances of the case. 5. The Assessee craves leave to add, amend, alter or delete the above grounds of appeal at the time of hearing.” 3. There is a delay of 601 days in filing the present appeal. The assessee filed an application for conodnation of delay, wherein contended that the assessee has not received the physical copy of the order passed by the CIT(A), further contended that the order impugned was passed on 23/07/2019, the assessee came to know about the passing of the impugned order upon receipt order passed u/s 154 of the Act on 24/03/2021 only. The appeal could not be filed on time since the assessee was suffering from partial paralysis and the family was going through tough times and the residential house of the assessee has been taken over by the State bank of India in March, 2019, therefore, the ITA No.558/Del/2021 Nisschal Jain vs. ITO Page 3 of 5 notices/correspondences issued to the said address was not came to our knowledge of the Assessee. Further, the assessee has also taken shelter under the order of the Hon'ble Supreme Court made in Miscellaneous Application No. 665/2021 in SMW(C) No. 3 of 2020, wherein the Hon'ble Supreme Court has exempted the computation of the period of the Covid while calculating the limitation period. For the reasons stated in the application filed by the assessee, the delay in filing the present appeal is condoned. 4. Brief facts of the case are that, an assessment order came to be passed u/s 147/144 of the Act by making addition of Rs. 3,05,62,725/- on account of investment in the immovable property of the assessee in Flat No.C-PH1, Nolida, by considering the same as unexplained income during the year under consideration. Aggrieved by the assessment order dated 15/12/2108, the assessee preferred an appeal before the CIT(A). The Ld. CIT(A) vide order dated 23/07/2019, dismissed the appeal ex-parte and observed that the assessee did not furnish any evidence to support is submission regarding the additions made by the A.O. As against the order of the CIT(A) dated 23/07/2019 the assessee preferred the present appeal on the grounds mentioned above. 5. The Assessee's Representative canvassing the argument on Ground No.1, submitted that the CIT(A) passed the ex-parte order without giving proper opportunity of being heard to the Assessee which is unjust, illegal, arbitrary and against to natural justice. Therefore, prayed for restoring the matter to the file of the CIT(A) for de-novo consideration. ITA No.558/Del/2021 Nisschal Jain vs. ITO Page 4 of 5 6. The Ld. Departmental Representative submitted that the assessee has not produced any documents in respect of the additions made by the A.O, thus, the CIT(A) has rightly dismissed the Appeal, nevertheless fairly submitted that an opportunity may be given to the assessee by remitting the matter to the file of CIT(A) for de-novo consideration. 7. We have heard both the parties and perused the material available on record. Since, the Appeal of the assessee has been decided ex-parte by the CIT(A) and the Assessee has not been given opportunity of being heard, the issues involved in the present appeal are remanded to the file of CIT(A) for de- novo adjudication of the matter. The assessee is directed to appear and cooperate with the CIT(A) in deciding the matter. Accordingly, Ground No. 1 of the assessee is partly allowed for statistical purpose. Since, we have remanded the matter to the file of CIT(A), the other grounds on of appeal requires no adjudication. 9. In the result, the Appeal of the assessee is partly allowed for statistical purpose. Order pronounced in open Court on 08 th August, 2023. Sd/- Sd/- (SHAMIM YAHYA) (YOGESH KUMAR U.S.) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 08/08/2023 Pk/R.N, Sr. ps ITA No.558/Del/2021 Nisschal Jain vs. ITO Page 5 of 5 Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI