Case Law Details
Minal Prashant Vakil Legal Heir of Late Vs ITO (ITAT Ahmedabad)
In the abovementioned case ITAT remanded the matter to CIT (A) after considering the fact that no proper opportunity was availed by assessee before CIT (A) and revenue has no objection in remanding the matter.
Assessee is an individual and Non Resident, did not file ITR for the year under consideration. Information received that assessee made TDS payment for a consideration of Rs.1,41,95,033/- on purchase of immovable property u/s. 194A. Therefore, assessment was reopened. In response, the assessee filed ITR declaring total income of Rs. 3,71,710/-. The assessee alongwith two Co-owners purchased immovable property on verification, it was found that total consideration is Rs.1,67,09,016/- paid by the assessee to the seller out of which source of Rs. 1,19,33,524/- was explained only. AO added remaining amount of Rs. 47,75,492/- as unexplained investment u/s 69, which includes Rs. 22,61,509/- received from relatives.
CIT (A) confirmed the addition in absence of any response from the assessee.
Before ITAT it was argued on behalf of assessee that CIT (A) provided all three opportunity within a short span of 15 days only. Hence, no effective opportunity given to the assessee who is an NRI. Thus one more opportunity was requested to which revenue didnot make any objection.
Considering the submission made by the assessee and statement of the revenue, matter is remanded back to CIT (A).
Appeal is allowed for the statistical purposes.
FULL TEXT OF THE ORDER OF ITAT AHMEDABAD
This appeal is filed by the Assessee as against the ex-parte appellate order dated 27.06.2024 passed by the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi, (in short referred to as “CIT(A)”), arising out of the reassessment order passed under section 143(3) r.w.s. 144C of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) relating to the Assessment Year 2015-16.
2. The brief facts of the case is that the assessee is an individual and Non Resident, having income from capital gains and income from other sources. As per the information with the Department, assessee made TDS payment for a consideration of Rs.1,41,95,033/- on purchase of immovable property u/s. 194A but no Return of Income filed. Therefore the assessment was reopened and a show cause notice u/s. 148A(b) was issued to the assessee. As there was no response, notice u/s. 148 was issued on 29-03-2022. In response, the assessee filed a Return of Income on 03-03-2023 declaring total income of Rs. 3,71,710/-. The assessee alongwith two Co-owners purchased immovable property at Shantigram Township for a value of Rs. 1,36,87,500/- from Adani Township and Real Estate Company Pvt. Ltd.
3. On verification, it was found that total consideration is Rs.1,67,09,016/- paid by the assessee to the The assesse has explained source of part payment of Rs. 1,19,33,524/- only and failed to explain the source of Rs.47,75,492/- which includes Rs. 22,61,509/- received from relatives. Therefore the Assessing Officer treated the amount of Rs.47,75,492/- as unexplained investment u/s. 69 of the Act and demanded tax thereon.
4. Aggrieved against the same, assessee filed an appeal before Ld. CIT(A) who has granted three opportunities of hearing on 14-05- 2024, 22-05-2024 and 30-05-2024. As there was no response to the above hearing notices and no materials placed before CIT(A), the appeal was dismissed, confirming the addition made by the Assessing Officer.
5. Aggrieved against the same, assesse is in appeal before us raising the various Grounds as follows:
1. The learned CIT(A) has erred both in law and on facts of the case in confirming the addition of 47,75,492/- as unexplained investment u/s 69 of the income tax Act 1961.
2. On the facts and circumstances of the case, The learned CIT(A) in his order dated 26-07-2024 passed under section 250 of the Income Tax Act, 1961 erred by not appreciating the fact that the share of the appellant in the property purchased jointly with his spouse is 50% only and he had provided complete source of his investment which is Rs.85,23,509/- and for remaining amount invested by his spouse, addition in the hands of the appellant cannot be made as appellant’s income.
3. The learned CIT(A) has passed the order without properly appreciating the facts and ignoring the fact that the appellant’s share in the property is 50% only and he has explained source of investment fully and further erred in passing the impugned order without providing sufficient opportunity to explain. This action of the lower authorities is in clear breach of law and Principles of Natural Justice and therefore deserves to be quashed
4. The learned CIT(A) has erred in law and on facts of the case in confirming the action of the learned AO in initiating penalty u/s 271(1) (c) and 271F of the I. T. Act, 1961.
5. The learned CIT(A) has erred in law and on facts of the case in confirming action of the AO in charging interest u/s. 234A, 2348, 234C of the Act
6. The appellant craves leave to add, amend, alter, edit, delete, modify or change all or any of the grounds of appeal at the time of or before the hearing of the appeal.
6. At the outset, Ld. Counsel submitted that the so called hearing opportunities given by CIT(A) between 14-05-2024 to 30-05- 2024 are within a period of 15 days only. Hence no effective opportunity given to the assessee who is an NRI and assessee’s share in the above properties is only 50% as co-owner and the source of investment is fully explained. Thus requested one more effective opportunity of hearing be given to the assessee to explain its case and also rise additional grounds.
7. Ld. Sr. D.R. appearing for the Revenue has no objection in setting aside the matter back to the file of Ld. CIT(A).
8. Recording the above statement, the order passed by the CIT(A) is hereby set aside with a direction to hear the appeal fresh by giving proper opportunity of hearing to the assessee and pass order on merits and in accordance with law.
9. In the result, the appeal filed by the Assessee is allowed for statistical purpose.
Order pronounced in the open court on 10-12-2024
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