K S BINANI HUF,MUMBAI V. ITO 24(2) 1), MUMBAI

ITA 269/MUM/2025

AI Insights

The case involves K S Binani HUF appealing against the order passed by the National Faceless Appeal Centre (NFAC), which was later upheld by the Commissioner of Income Tax (Appeals). The primary issues in the appeal included the reopening of the case under section 148 without proper verification and the addition of Rs 40,00,000 as a loan under section 68 read with section 115BBE, which was contested on various grounds including lack of confrontation and mechanical approval. The Tribunal noted a procedural error by the CIT(A) in dismissing the appeal based on a mistaken fact regarding the withdrawal of the appeal for a different assessment year. Consequently, the Tribunal directed the CIT(A) to re-examine the case with a focus on the merits and proper adherence to procedural requirements.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 25744 (ITAT-MUMBAI)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: K
• Assessment Year: 2018-2019
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KIRAN UNAVEKAR
• Assessee Lawyers: BHUPENDRA SHAH
• Keywords: Opportunity of being heard; Third party statement; Opportunity of cross examination
• Section: 148; 133(6)

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL “K(SMC)” BENCH, MUMBAI BEFORE SMT. BEENA PILLAI (JUDICIAL MEMBER) AND SHRI RENU JAUHRI (ACCOUNTANT MEMBER) I.T.A. No. 269/Mum/2025 Assessment Year: 2018-19 K S Binani HUF B-111, Vishnu Baug 137 S V Road, Andheri (West) Maharashtra-400058 PAN: AAGHK2292G Vs. ITO 24(2)(1) 6th Floor Piramal Chamber Income Tax Office Parel Maharashtra-400012 (Appellant) (Respondent) Appellant by Shri. Bhupendra Shah Respondent by Shri. Kiran Unavekar, SR. D.R. Date of Hearing 27.02.2025 Date of Pronouncement 28.02.2025 ORDER Per: Smt. Beena Pillai, J.M.: The Present appeal filed by the assessee arises out of order dated 10/12/2024 passed by NFAC Delhi. “1) In the facts and circumstances of the case and in law, the JAO erred in reopening the case under section 148 by overlooking the fact that a) Only FAO can issue notice after NFAC was introduced b) No verification was made 2 ITA No. 269/Mum/2025; A.Y. 2018-19 K S Binani HUF c) Without granting opportunity of being heard d) No asset exceeding Rs 50 lac is found. e) Approval was mechanically granted Without prejudice to the above and alternatively, 2) In the facts and circumstances of the case and in law, the Assessing Officer erred in making addition of Rs 40,00,000/in respect of loan u/s 68 r ws 115BBE a) Only on the basis of third party statement b) Only on the basis of suspicion c) Without confronting statement recorded in the case of creditor d) Without issuing notice u/s 133(6) to the creditor e) Without allowing cross examination the said creditor f) Overlooking the fact that transactions are through banking channel g) Without making any verification of the loan repayment h) Disregarding all documents filed i) Without referring the matter to VU/TU 3) In the facts and circumstances of the case and in law, the Assessing Officer erred in charging interest u/s 234A, B and C and also initiating penalty u/s 271AAC. 4) In the facts and the circumstances of law, the Ld Commissioner of Income Tax(A) erred in dismissing the appeal only by holding that appeal for AY 18-19 is wrongly withdrawn by the Appellant instead of AY 2014-15. Relief Praved: The Appellant therefore prays follows, 1. To quash the reopening wrongly made under section 148 2. To delete the addition of loan amounting to Rs. 40,00,000/- 3. To delete interest charged u/s 234 A, B and C and initiation of penalty u/s 271(1)AAC. 4. To restore the Appeal to CIT[A] 3 ITA No. 269/Mum/2025; A.Y. 2018-19 K S Binani HUF General:- The Appellant reserve rights to add alter or delete any portion of this appeal before its conclusion. a. This appeal is filed in time b. A Detailed paper book along with case laws will be submitted at the time of hearing.” 2. At the outset, the Ld.AR submitted that, the assessee sought for DVSV 2024 for assessment year 2014-15. Copies of Form 1, 2, 3 & 4 for A.Y. 2014-15 is placed at page 35- 36 of the paper book. 2.1 He submitted that inadvertently, the said appeal for assessment year was also considered to be withdrawn by the Ld.CIT(A). He referred to the relevant para of the impugned order, scanned and reproduced as under: “1. Hearing notice was issued on 1/05/2024. A letter was received from appellant on 09/12/2024 stating inter alia that \" Dear sir/Madam, Please find attached herewith Form no.2 issued by Principal CIT-20 Mumbai under VSV-2024. I there for request you to treat this appeal as withdrawn. Kindly note the same, so that i can file the same with form no.3, to the office of Principal CIT-20 Mumbai. Thanking you, Your Faithfully. K.S. BINANI HUF Kamal Binani. Karta CC to: Principal CIT- 20 Mumbai.-Request to issue Form no.4.\"” 2.2 The Ld.AR submitted that the present appeal may be restored back to the Ld.CIT(A) for deciding the issues on merits. We have perused the submissions advanced by both sides in light of records placed before us. 3. It is noted that the Ld.CIT(A) refers to letter dated 9/12/2024 filed by the assessee seeking to withdraw the appeal. It seems that the impugned order was passed by the Ld.CIT(A) on mistaken fact as the letter seeking withdrawal the appeal filed by 4 ITA No. 269/Mum/2025; A.Y. 2018-19 K S Binani HUF the assessee placed on page 57 does mention the assessment year. 3.1 We therefore remit the appeal to the Ld.CIT(A) for necessary verification of the above narrated facts by Ld.AR. In the event the submissions are found to be true, the Ld.CIT(A) is directed to pass a detailed order by considering the issues on merits based on the evidence filed by the assessee in accordance with law. Needless to say the proper opportunity of being heard must be granted to the assessee. In the result, the appeal filed by the assessee stands allowed for statistical purposes. Order pronounced in the open court on 28/02/2025 Sd/- Sd/- (RENU JAUHRI) (BEENA PILLAI) Accountant Member Judicial Member Mumbai: Dated: 28/02/2025 Poonam Mirashi/Dragon Stenographer Copy of the order forwarded to: (1)The Appellant (2) The Respondent (3) The CIT (4) The CIT (Appeals) (5) The DR, I.T.A.T. True Copy By order 5 ITA No. 269/Mum/2025; A.Y. 2018-19 K S Binani HUF (Asstt. Registrar) ITAT, Mumbai "