JUZER SAIFUDDIN BORIYAWALA ,MUMBAI V. INCOME TAX OFFICER WARD, 24(2)(1), MUMBAI

ITA 1543/MUM/2025

AI Insights

The case involves Juzer Saifuddin Boriyawala, a non-resident individual residing in Sharjah, UAE, who appealed against the order of the National Faceless Appeal Centre (NFAC), Delhi, which was initially based on an assessment order passed by the Income-tax Officer, Ward 24(2)(2), Mumbai. The assessment was made under sections 144 and 147 of the Income-tax Act, 1961, due to alleged non-compliance with notices regarding unexplained cash deposits and investments. The assessee contested the jurisdiction and the validity of the notices, claiming no such notices were received, and no representative was appointed in India. The Tribunal found that the Ld. CIT(A) had not adequately addressed these fundamental issues and thus restored the matter for a detailed examination.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 775219 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2012-2013
• Appeal Filed On: 04-03-2025
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KAVITHA KAUSHIK
• Assessee Lawyers: SAKAR SHARMA VIRTUALLY APPEARED
• Keywords: Opportunity of being heard; Unexplained investment
• Section: 147; 148; 144; 142(1); 139

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “F”, MUMBAI BEFORE SHRI NARENDRA KUMAR BILLAIYA, ACCOUNTANT MEMBER AND SHRI ANIKESH BANERJEE, JUDICIAL MEMBER I.T.A No.1543/Mum/2025 (Assessment Year: 2012-13) Juzer Saifuddin Boriyawala PO Box 35141, Sharajahanaen, Sharjah AE 999999 PAN: AMQPB2166C vs Income-tax Officer, Ward 24(2)(1), Mumbai, Piramal Chambers, Mumbai-400 012 APPELLANT RESPONDENT Assessee by : Shri Sakar Sharma (virtually appeared) Respondent by : Shri Kavitha Kaushik (SR DR) Date of hearing : 03/09/2025 Date of pronouncement : 05/09/2025 O R D E R Per Anikesh Banerjee (JM): The instant appeal of the assessee filed against the order of the National Faceless Appeal Centre (NFAC), Delhi [for brevity, ‘Ld.CIT(A)’] passed under section 250 of the Income-tax Act, 1961 (in shot, ‘the Act’) for the Assessment Year 2012- 13, date of order 03/01/2025. The impugned order emanated from the order of the Learned Income-tax Officer, Ward 24(2)(2), Mumbai (in short, ‘the Ld.AO’) passed u/s 144 r.w.s. 147 of the Act. Printed from counselvise.com 2 ITA No.1543/Mum/2025 Juzer Saifuddin Boriyawala 2. The brief facts of the case are that the assessee is a nonresident individual residing at Sharjah, UAE. The assessee has no representative in India within the meaning of section 163 or otherwise for any matters concerning Govt or other dealings. In absence of any income assessable under the provisions of Income-tax Act, 1961, no return of income u/s 139 was furnished. The Ld. AO claims to have issued notice u/s 148 on 30/03/2018 requiring assessee to furnish return u/s 148 of the Act. Ld. AO also claims to have issued and served notices 142(1) on the assessee. In absence of any compliance on the part of the assessee, the Ld. AO proceeded to frame assessment u/s 144 r.w.s. 147 of the Act by determining total income at Rs. 69,19,544/-. The Ld. AO has made two additions in the assessment order. Firstly, addition of Rs. 35,34,050/ on account of alleged unexplained cash deposited in the bank account maintained with Lunawada Peoples Co-op Bank Ltd and secondly, an amount of Rs. 27,85,494/ on account of alleged unexplained investment in Bombay Stock Exchange. The assessment order came to be served on the assessee on 15/01/2019 at Sharjah. On going through the assessment order, it is noticed that Ld. AO has named one Shri Sidram B Vasmate as representative of assessee in India. The assessee submitted that assessee has not appointed person named as his representative any time and therefore, fact stated in the assessment order is patently incorrect. Further, no notices u/s 148 or under any other provisions of the Act came to be served on the assessee and therefore, assessee had no occasion to comply with such notices any time. The appeal filed by the assessee did not find favour with the Ld.CIT(A). Hence, the assessee filed appeal before us. 3. The Ld.AR appeared for the assessee and filed a paper book containing pages 1 to 86, which is kept on record. The Ld.AR stated that the reopening was made Printed from counselvise.com 3 ITA No.1543/Mum/2025 Juzer Saifuddin Boriyawala u/s 148 of the Act for the impugned assessment year, but no notice was received by the assessee; so the assessment order made by the Ld.AO is non est. On the same issue, the legal ground was duly agitated before the Ld.CIT(A). The Ld.AR invited our attention to ground 1 of appeal, which was taken before the Ld.CIT(A). The same is extracted below: - Ground No. Applicable Sec. Grounds of appeal 1. 148 / 147 The Ld.Assessing Officer erred on facts and in law in assuming jurisdiction to assess income of appellant u/s 147 in as much as without serving notice u/s 148 on the appellant any time before completion of assessment. 4. The Ld. DR argued and relied on the order of revenue authorities. 5. We have heard the rival submissions and perused the material available on record. The assessment in the present case was completed under section 147 of the Act. The grievance of the assessee is that he is a Non-Resident Indian (NRI) and had not received any notice under section 148 of the Act at the stage of initiation of the reopening proceedings. It is also the contention of the assessee that he had no authorised representative or holder of power of attorney in India to represent him before the Income-tax Department. It is seen that this issue was specifically raised before the Ld. CIT(A), but the Ld. CIT(A) treated grounds Nos. 1 to 4 as being general in nature and refrained from adjudicating upon them. In our considered view, the Ld. CIT(A) was not justified in declining to adjudicate these grounds, since they go to the very root of the validity of the assessment proceedings and have a direct bearing on the fate of the assessment order itself. Accordingly, we deem it appropriate to restore the matter to the file of the Ld. CIT(A) with a direction to adjudicate grounds Nos. 1 to 4 afresh, after affording the assessee a reasonable opportunity of being heard. The Ld. CIT(A) shall also take into Printed from counselvise.com 4 ITA No.1543/Mum/2025 Juzer Saifuddin Boriyawala account the evidence or documents that the assessee may place on record and thereafter pass a speaking order in accordance with law. We make it clear that we have not expressed any opinion on the merits of the case, so as not to cause prejudice to the proceedings before the appellate authority. Insofar as the merits of the additions are concerned, the issue is left open for the assessee to raise at the appropriate stage, if so advised. 6. In the result, the appeal of the assessee bearing ITA No.1543/Mum/2025 is allowed for statistical purpose. Order pronounced in the open court on 05th day of September, 2025. Sd/- sd/- (NARENDRA KUMAR BILLAIYA) (ANIKESH BANERJEE) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai, िदनांक/Dated: 05/09/2025 Pavanan Copy of the Order forwarded to: 1. अपीलाथ /The Appellant , 2. ितवादी/ The Respondent. 3. आयकर आयु\u0014 CIT 4. िवभागीय ितिनिध, आय.अपी.अिध., मुंबई/DR, ITAT, JODHPUR 5. गाड\u0019 फाइल/Guard file. BY ORDER, //True Copy// (Asstt. Registrar), ITAT, MUMBAI Printed from counselvise.com "