MONIKA JAIN,JAIPUR V. ITO, WARD-6(1), JAIPUR

ITA 1147/JPR/2025

AI Insights

The case involves Monika Jain, who appealed against the order of the National Faceless Appeal Centre (CIT(A)), which had set aside her assessment for the year 2016-17 back to the Assessing Officer (AO). The original assessment was made under section 144 of the Income Tax Act, where the AO had added a significant amount to the assessee's declared income based on discrepancies between her income tax return, service tax return, and 26AS statements. The CIT(A) set aside the assessment, leading to the current appeal. The Tribunal, after considering the additional evidence and the remand report from the AO, decided to allow the appeal, directing the deletion of the addition made to the assessee's income.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 784402 (ITAT-JAIPUR)
• Duration Of Justice: 2 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-11-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2016-2017
• Appeal Filed On: 19-08-2025
• Other Referred Cases: Collector, Land Acquisition vs. Mst. Katiji and Others, 167 ITR 471 (SC)
• Laws Referred To: Income Tax Act
• Result in Favour of: Matter Remanded
• Court: TRIBUNAL
• Department Lawyers: GAUTAM SINGH CHOUDHARY
• Assessee Lawyers: ASHISH GOYAL
• Keywords: Condonation of delay; Set aside; Business income; Additional evidence; Reasonable cause; TDS; Assessment record; Non compliance
• Section: 144; 143(3); 142(1); 194C

Judgement Text

" vk;dj vihyh; vf/kdj.k] t;iqj U;k;ihB] t;iqj IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”SMC” JAIPUR Mk0 ,l- lhrky{eh] U;kf;d lnL; ,oa Jh jkBksM deys'k t;UrHkkbZ] ys[kk lnL; ds le{k BEFORE: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, vk;dj vihy la-@ITA No. 1147/JP/2025 fu/kZkj.k o\"kZ@Assessment Year : 2016-17 Monika Jain PP 101, 3rd Floor, Maurya Enclave Pitampura, New Delhi cuke Vs. ITO Ward 6(1), Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AJDPJ6659A vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Sh. Ashish Goyal, CA jktLo dh vksj ls@ Revenue by : Sh. Gautam Singh Choudhary, Addl. CIT lquokbZ dh rkjh[k@ Date of Hearing : 09/10/2025 mn?kks\"k.kk dh rkjh[k@Date of Pronouncement: 12/11/2025 vkns'k@ ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM By way of present appeal the above named assessee challenges the order of the National Faceless Appeal Centre, Delhi dated 25/10/2024 [ for short CIT(A)] the captioned assessee preferred the present appeal. The dispute relates to the assessment year 2016-17. The said order of the ld. CIT(A) arises because the assessee has challenged the assessment order dated 14.12.2018 passed under section 144 of the Income Tax Act, [ for short “AO”] by Income-tax Officer, Ward 6(1), Jaipur. Printed from counselvise.com 2 ITA No. 1147/JP/2025 Monika Jain vs. ITO 2. In this appeal, the assessee has raised following grounds: - “1. That Id CIT(A) has erred in law as well in facts of the case is setting aside the assessment to the AO even remand report was filed by the AO to CIT(A) in relation to limited (specific) issue for which proceeding u/s. 143(2)/143(3) was initiated. 2. That the Id CIT(A) has erred in law as well in facts of the case is setting aside the assessment as a matter of course by relying upon amendment in section 251 by finance Act 2024, without appreciating that it was not obligatory on part of CIT(A) to set aside every order u/s 144 as the legislatures used \"May Set Aside\" 3. That Id CIT(A) has erred in law as well in facts of the case is not taking cognizance of remand report filed by AO. 4. That the appellant reserves his right to add, amend, alter or withdraw any ground of appeal on or before hearing of this appeal. 3. At the outset of hearing, the Bench observed that there is delay of 231 days in filing of the appeal by the assessee for which the ld. AR of the assessee filed an application for condonation of delay with following prayers: “Monika Jain, the above-named assessee-appellant would like to submit that. 1. That the appellant is carrying on business of Media & Broadcasting under the trade name of M/s Dynamic New Media. 2. That the original assessment for the relevant year was passed ex-parte by ITO ward 6(1) on 14.12.2018 as the appellant could not & cannot participate in assessment proceeding owing to change of address from delhi to Jaipur Moreover, the Appeal was filed before CIT(A) and even application for admission of additional evidence was filed under rule 46A of Income tax Rules. The remand report in connection with the additional evidence was also received by the worthy CIT (A), NFAC 3. That the CIT(A) NFAC vide appellate order dated 25.10.2024, brushing aside the remand report, set aside the assessment to the file of Assessing officer by relying on amendment made in section 251 by Finance Act 2024 where in power to set aside was granted to Appellate Commissioner in cases completed u/s 144 of Printed from counselvise.com 3 ITA No. 1147/JP/2025 Monika Jain vs. ITO the Act. The order dated 25.10.2024 was duly served to the appellant on very same day on e-mail. 4. That the appeal against impugned order was statutorily required to be filed before worthy tribunal by 24.12.2024 and therefore there is delay of 233 days in filing form 36 which the appellant requests your honour to condone and allow admission of the appeal. 5. That the delay in filing Form 36 is solely due to lack of clarity over the new embedded provision in section 251. The appellant was under bona fide belief that due to recent amendment, it was obligatory for the CIT(A) to set aside cach & every case completed u/s 144 to file of AO and therefore appellant in distress, was waiting for initiation of set aside proceedings by the AO instead of approaching next Judicial Forum 6. That the factum of impugned set aside order was appealable before worthy ITAT came to the knowledge of the appellant only when the notice u/s 142(1) was issued from the NFAC, New Delhi Dated 20.06.2025 for making fresh assessment for relevant year and thereafter appellant contacted counsel, who updated the appellant on emerging jurisprudence on the matter. 7 That the delay in filing the form 36 is bona fide & unintentional and backed by reasonable cause. It is therefore, humbly prayed to kindly condone the delay of 233 days in filing Form 36 and allow admission of appeal and oblige. 4. During the course of hearing on delay part the ld. DR did not object to the contention raised by the assessee in her application for condonation of delay and prayed that Court may decide the issue as deem fit in the interest of justice. 5. We have heard the contention of the parties and perused the materials available on record. The prayer by the assessee for condonation of delay of 231 days has merit as was not having clarity by the advice of the counsel to take the matter further or to wait for the order in remand Printed from counselvise.com 4 ITA No. 1147/JP/2025 Monika Jain vs. ITO proceeding. Thus, the reasons advanced was sufficient and thereby we condone the delay of 231 days in filing the appeal by the assessee in view of the decision of Hon’ble Supreme Court in the case of Collector, land Acquisition vs. Mst. Katiji and Others, 167 ITR 471 (SC) as the assessee is prevented by sufficient cause. 6. Succinctly, the fact as culled out from the records is that the assessee filed E-return of Income on 07.01.2017 for the Asstt. Year 2016- 17 declaring total income of Rs.8,29,550/-. The case was selected for Limited scrutiny under the CASS and accordingly, notice u/s 143(2) issued on 19.09.2017. Subsequently, notice u/s 142(1) of the I.T. Act along with specific questionnaire was issued on 09.07.2018, 05.10.2018, 18.10.2018, 06.11.2018 & 15.11.2018 by the AO through E-Proceedings on ITBA. The assessee submitted reply online electronically in E-Proceedings facility through account in e-filing website of Income Tax Department. The assessee, during the period under consideration, derived income from broadcasting service. The assessee submitted online reply related to limited scrutiny issues which were examined. The assessee was asked to submit to necessary documents and evidences for verification but the same has not been produced till date of completion of assessment. This sequence of events shows the casual approach of the assessee, her Printed from counselvise.com 5 ITA No. 1147/JP/2025 Monika Jain vs. ITO negligent behavior and willful non compliance of the statutory notices issued by the ld. AO, therefore, ld. AO noted that he has no option but to pass order u/s 144 of the Act, after giving due consideration on the facts and circumstances case and whatever reply filed by the assessee. Ld. AO noted that as per 26AS the assessee has received contract receipts u/s 194C and 194H amounting to Rs. 2,22,40,805/- and turnover as per service tax return was 5,88,29,322/- during FY 2015-16 but in the ITR the assessee has declared total turnover of Rs. 59,67,697/- only. The assessee was asked to explain the difference but no reply was filed. The assessee did not submit any document regarding nature of receipts. She did not furnish any explanation as to why turnover in income tax return was shown must less than the receipts as per 26AS on which TDS was deducted by the payer. Similarly, the assessee has not given any explanation as to why more turnover was shown in service tax return and why less turnover was declared in Income Tax return. The assessee has not submitted any single document, which could explain the difference in turnover in service tax return. 26AS and ITR. In online reply filed on 24.09.2017 in response notice u/s 143(2), the assessee submitted that \"Whether sales turnover shown on net basis i.e. Broadcasting Income-Broadcasting Exp”. But despite Printed from counselvise.com 6 ITA No. 1147/JP/2025 Monika Jain vs. ITO providing several opportunities to the assessee as discussed in detail in the order, the assessee did not furnish any document to substantiate its claim that in the ITR turnover has been shown after deduction of expenses. In absence of any plausible explanation, turnover declared in service tax return was taken as turnover of the assessee. Therefore, turnover of the assessee taken at Rs.5,88,29,322/- as declared in service tax return. Net profit of the assessee is assessed @ 8% of gross turnover of Rs.5,88,29,322/-, which comes to Rs.47,06,346/-. The assessee has already declared net profit of Rs.9,18,968/-. Hence the balance of Rs.37,87,378/- was added to business income of the assessee and therefore, ld. AO determined the total income of Rs. 46,16,928/- as against the return of income of Rs. 8,29,550/-. 7. Aggrieved from the order of Assessing Officer, assessee preferred an appeal before the ld. CIT(A), NFAC. Apropos to the grounds raised the relevant finding of the ld. CIT(A), NFAC is reiterated here in below: 8. Decision: 11.0. The instant appeal has been filed against the order u/s. 143(3) r.w.s., 144 of the I.T.Act dated 14-12-2018 for A.Yr. 2016-17. 9. Brief Facts of the case: (assessment order) The assessee filed her return of income for A.Y.2016-17 electronically on 07/1/2017 declaring an income of Rs.8,29,550/-. The case was selected for limited scrutiny through CASS. The appellant did not make any compliance during the assessment proceedings and the AO after considering the contract receipts Printed from counselvise.com 7 ITA No. 1147/JP/2025 Monika Jain vs. ITO on which TDS was done u/s. 194C and receipts on which TDS was made u/s.194H and after considering the turnover as per service tax return, and finding the difference in the turnovers being disclosed, estimated the income on the difference of the turnover disclosed and completed the assessment u/s. 144 after making addition of Rs.37,87,378/- to the business income. 9.1. Aggrieved by the above said order of the Assessing Officer, the appellant has filed the present appeal before CIT(A). During the course of appellate proceedings, notices u/s 250 have been issued on various dates. The written submissions filed by the appellant has been extracted in the preceding para. During the appellant proceedings remand report was also called for form the AO on account of additional evidences. The copy of the remand report has been extracted in the proceeding paras. The appellant has also taken the ground that the reasonable opportunity was not provided during the assessment proceedings. 9.2. Various judicial pronouncements have consistently held that the issue of giving opportunity and hearing to the appellant, is vital for the assessment of income arrived at by the Assessing Officer and the same has to be also used by the appellant by providing proper submissions and not only as a dilatory tactic so that the issue of not giving the proper opportunity should not be raised at a subsequent level. 9.3. It is worthwhile to point out that by Finance Act 2024, amendment has been made to section 251 wherein power of set-aside has been given to CIT(Appeals) for the assessments completed u/s, 144 of the Act, with effect from 01-10-2024. The relevant part of the amendment to section 251 is as under \"Provided that where such appeal is against an order of assessment made under section 144, he may set aside the assessment and refer the case back to the Assessing Officer for making a fresh assessment;\". 10. Considering the facts of the case and the assessment order completed u/s.144 being under-challenge in the present appeal and the observations made above with respect to the grounds of appeal challenging the merits of the addition, to meet the ends of justice, I find it fit to set-aside the assessment to the Assessing Officer and refer the case back to the Assessing Officer to complete the fresh assessment after giving proper opportunity and hearing to the appellant. The appellant is also directed to ensure that proper compliance and furnishing of the required documents, including the additional evidences filed during the appellate proceedings, is made during the set aside assessment proceedings before the Assessing Officer. However, no decision is being given on the merits of the case to cause any prejudice on the same. Subject to the above decision to set-aside the assessment as discussed above, all the grounds of appeal are hereby disposed off. 11. In the result the appeal is allowed for statistical purposes. Printed from counselvise.com 8 ITA No. 1147/JP/2025 Monika Jain vs. ITO 8. Feeling dissatisfied with the finding of the ld. CIT(A) even though the same was after considering the additional evidence filed by the assessee, thereafter the same was forwarded to the ld. AO and he filed the remand report thereupon. Doing this much exercise on the merits of the dispute the ld. CIT(A) should not have set aside the matter to the file of the ld. AO. Ld. AR of the assessee, having argued heavily relied upon the following finding so recorded in the remand report already placed on record. Thus, when the assessee moved the petition under rule 46A filed all the additional evidence and having admitted the said additional evidence the report of the AO needs to be given the logical conclusion. Thus, ld. AR heavily relied upon the content of the remand report which reads as follows : 7. Submission of remand report (by Assessing Officer): Kindly refer to your letter No. CIT(A)-2/JPR/2019-20/857 dated 30.01.2020 for submission of report/comments in the above case before your kind office. In this regard, the reply is submitted hereunder:- From the perusal of assessment record of the above mentioned assessee, it is observed that the assessee has e-filed return of income declaring total income of Rs.8,29,550/- The case was selected under CASS for limited scrutiny. Accordingly, during the assessment proceedings the assessee was provided ample opportunities to furnish the details/documents related to the issue but, she chose not to appeal before the AO for the reasons best known to her only. Therefore, the AO had passed order u/s.144 on 14.12.2018 at total income of Rs.46,16,930/- by making addition of Rs.37,87,378/-. Hence, it is requested that the additional evidences now produced before your goodself may not be accepted. However, without prejudice to the above, on examination of the copies of the P&L, Balance Sheet, service tax return and other details/documents. Printed from counselvise.com 9 ITA No. 1147/JP/2025 Monika Jain vs. ITO submitted during the course of appellate proceedings, the assessee has furnished reasons of difference in total turnover declared in the ITR and turnover as per service tax return, which is seems to be acceptable. Hence, it is requested that additional evidences/documents submitted by the assessee may be considered. As is clearly accepted by the ld. AO that the assessee has placed on record all the evidence and based on that the above finding is recorded and therefore, the addition of 8% of on alleged income at Rs. 37,87,378/- is required to be deleted because ld. AO has taxed the same income twice in the remand proceedings. The ld. DR did not dispute the turnover reported and reconciled by the assessee. 9. The ld DR relied upon the order of AO and ld. CIT(A). The ld. DR vehemently argued that the ld. CIT(A) has rightly set aside the assessment to the file of ld. AO. 10. We have heard the rival contentions and perused the material placed on record. Though the assessee has taken four different ground challenging the finding of the ld. CIT(A) holding to remand the matter to the file of the ld. AO. The brief facts related to the dispute are that the assessee filed E- return of Income on 07.01.2017 declaring total income of Rs.8,29,550/-. The case was selected for Limited scrutiny under the CASS and statutory notices were issued. The assessee submitted reply online electronically in E-Proceedings facility through account in e-filing website of Income Tax Printed from counselvise.com 10 ITA No. 1147/JP/2025 Monika Jain vs. ITO Department. The assessee, during the period under consideration, derived income from broadcasting service. The assessee submitted online reply related to limited scrutiny issues which were examined. The assessee was asked to submit to submit necessary documents and evidences for verification but the same has not been produced till date of completion of assessment and therefore, ld. AO passed exparte order. While doing so ld. AO noted that as per 26AS the assessee has received contract receipts u/s 194C and 194H amounting to Rs. 2,22,40,805/- and turnover as per service tax return was 5,88,29,322/- during FY 2015-16 but in the ITR the assessee has declared total turnover of Rs. 59,67,697/- only. The assessee was asked to explain the difference, but no reply was filed. The assessee did not submit any document regarding nature of receipts. She did not provide any explanation as to why turnover in income tax return was shown must less than the receipts as per 26AS on which TDS was deducted by the payer. She also did not explain as to why more turnover was shown in service tax return and why less turnover was declared in Income Tax return. The assessee has not submitted any single document, which could explain the difference in turnover in service tax return. 26AS and ITR. In online reply filed on 24.09.2017 in response notice u/s 143(2), the assessee submitted that \"Whether sales turnover shown on net basis i.e. Broadcasting Income- Printed from counselvise.com 11 ITA No. 1147/JP/2025 Monika Jain vs. ITO Broadcasting Exp”. But despite providing several opportunities to the assessee as discussed in detail in the order, the assessee did not furnish any document to substantiate its claim that in the ITR turnover has been shown after deduction of expenses. In absence of any plausible explanation, turnover declared in service tax return was taken as turnover of the assessee. Therefore, turnover of the assessee was taken at Rs.5,88,29,322/- as declared in service tax return. Net profit of the assessee is assessed @ 8% of gross turnover of Rs.5,88,29,322/-, which comes to Rs.47,06,346/-. The assessee has already declared net profit of Rs.9,18,968/-. Hence the balance of Rs.37,87,378/- was added to business income of the assessee and therefore, ld. AO determined the total income of Rs. 46,16,928/- as against the return of income of Rs. 8,29,550/-. When the matter carried before the ld. CIT(A), the assessee filed an application for additional evidence as per rule 46A of the Income Tax Rules. Ld. CIT(A) having admitted send it to ld. AO for sending the report / comments based on this additional evidence filed by the assessee. The ld. AO in nutshell on the issue reported as under : However, without prejudice to the above, on examination of the copies of the P&L, Balance Sheet, service tax return and other details/documents. submitted during the course of appellate proceedings, the assessee has furnished reasons of difference in total turnover declared in the ITR and turnover as per service tax return, which is seems to be acceptable. Hence, Printed from counselvise.com 12 ITA No. 1147/JP/2025 Monika Jain vs. ITO it is requested that additional evidences/documents submitted by the assessee may be considered. Thus, when the ld. AO categorically accepted the additional evidence and has verified the alleged dispute regarding difference in turnover we do not see any reason to set aside the matter to the file of the ld. AO and therefore, we are of the considered view that the ld. CIT(A) ought to have decided the appeal directing the ld. AO to delete the addition but he set aside the same. Considering the overall facts placed on record and clear finding recorded by the ld. AO in the remand proceeding we see no reason to support the view of the ld. CIT(A) and therefore, we direct the ld. AO to delete the impugned addition made while passing the order. In the result the appeal of the assessee is allowed. Order pronounced in the open court on 12/11/2025. Sd/- Sd/- ¼ Mk0 ,l- lhrky{eh ½ ¼ jkBksM deys'k t;UrHkkbZ ½ (Dr. S. Seethalakshmi) (Rathod Kamlesh Jayantbhai) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 12/11/2025 *Ganesh Kumar, Sr. PS Printed from counselvise.com 13 ITA No. 1147/JP/2025 Monika Jain vs. ITO vkns'k dh izfrfyfi vxzsf’kr@Copy of the order forwarded to: 1. The Appellant- Monika Jain, New Delhi 2. izR;FkhZ@ The Respondent- ITO, Ward 6(1), Jaipur 3. vk;dj vk;qDr@ The ld CIT 4. vk;dj vk;qDr¼vihy½@The ld CIT(A) 5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur 6. xkMZ QkbZy@ Guard File (ITA No. 1147/JP/2025) vkns'kkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar Printed from counselvise.com "