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2023 (3) TMI 398 - AT - Income TaxReopening of assessment u/s 147 - non-issuance of notice u/s 143(2) - undisclosed sources u/s 69 - HELD THAT - Where the Revenue challenges the filing of return of income the onus is on the assessee to demonstrate that the return of income has been duly filed which require uploading the return of income on the e-filing portal as well as verification thereof through either online or physical mode. Only where the return has been uploaded and duly verified it can be said that the return of income has been filed with the department. In the instant case though the assessee has submitted a copy of ITR V with e-filing acknowledgement number with date of filing as 16/05/2018 it is unclear whether after e-filing the return of income has been duly verified by the assessee or not. Only where it is established that the assessee has duly filed the return of income in response to notice u/s 148 which is e-filed and verified in the mode and manner as prescribed the question of issuance or non-issuance of notice u/s 143(2) arises for consideration and in absence thereof it would be pre-mature to decide the necessity and legality of issuance of such notice. We also find that the assessee has raised this ground before the ld CIT(A) as well however there is no adjudication and finding recorded by the ld CIT(A). Therefore we deem it appropriate to set-aside the said ground of appeal to the file of the ld CIT(A) to decide the same as per law and the ground is thus allowed for statistical purposes. Assessee did not avail of opportunity during the remand proceedings - It is noted that during the course of appellate proceedings the assessee had moved an application for submitting additional evidence in form of copy of sale deed copy of Form 15CB/CA and Form 26AS and these documents were then sent to the AO for verification and a remand report was called. The AO thereafter vide letter dated 9/11/2020 has sought certain additional documentation from the assessee in form of working of capital gains copy of purchase deed and copy of bank statement with ICICI Bank. The ld AR has submitted that the assessee never received the said communication and even the remand report was not confronted to the assessee. We find that the additional evidence submitted by the assessee especially given that the assessment was completed u/s 144 as well as additional documentation required by the AO are essential and critical for determination of issue under consideration. We therefore deem it appropriate that the matter is set-aside to the file of the ld CIT(A) to consider the additional evidences and decide the same as per law after providing reasonable opportunity to the assessee. Mechanical grant of approval under section 151 - Both the parties have fairly submitted that even though the assessee has raised this ground of appeal before the ld CIT(A) there is no adjudication and finding recorded by the ld CIT(A). In view of the same and also given that on other grounds of appeal we have set-aside the matter to the file of ld CIT(A) we deem it appropriate to set-aside this ground of appeal as well as to the file of the ld CIT(A) to decide the same as per law after providing reasonable opportunity to the assessee. Appeal of the assessee is allowed for statistical purposes.
Issues Involved:
1. Delay in filing the appeal. 2. Service of notice under section 148 of the Income Tax Act. 3. Issuance of notice under section 143(2) of the Income Tax Act. 4. Opportunity to present additional evidence during remand proceedings. 5. Reopening of assessment under section 148 and the approval under section 151 of the Income Tax Act. Detailed Analysis: 1. Delay in Filing the Appeal: The appeal was filed by the Assessee against the order of the Learned Commissioner of Income Tax (Appeals)-43, New Delhi, dated 13/07/2021, pertaining to the assessment year 2011-12. The Assessee had expired on 04/09/2019, and the legal heir, Mrs. Poonam Kalia, was brought on record. There was a delay of 36 days in filing the appeal. After hearing both parties and considering the material available, the Tribunal found reasonable cause for the delay and condoned it, admitting the appeal for adjudication. 2. Service of Notice under Section 148 of the Income Tax Act: The Assessee contended that the notice under section 148 was never received as the Assessee had no premises in India after selling the house on 22/06/2010. The overseas address was available in Form No. 15CA uploaded on the Income Tax Department site, but no valid service of notice occurred. The Revenue argued that notices were issued at the last known Indian and USA addresses, but there was no compliance. The Tribunal noted that the onus is on the Revenue to demonstrate proper service of notice. Since the CIT(A) did not adjudicate this issue, the Tribunal set aside this ground of appeal to the CIT(A) for a decision as per law. 3. Issuance of Notice under Section 143(2) of the Income Tax Act: The Assessee claimed that the return of income was filed on 16/05/2018 in response to the notice under section 148, but no notice under section 143(2) was issued, making the proceedings invalid. The Revenue countered that the return was not filed within the stipulated period, and thus, the AO was not required to issue a notice under section 143(2). The Tribunal found that it was unclear whether the return was duly verified after e-filing. The Tribunal set aside this ground to the CIT(A) to determine if the return was properly filed and verified, and if so, to consider the necessity and legality of issuing a notice under section 143(2). 4. Opportunity to Present Additional Evidence during Remand Proceedings: The Assessee argued that no notice was served to appear before the AO during remand proceedings, and the remand report was not confronted to the Assessee. The Revenue stated that the AO sought additional documentation, which the Assessee failed to provide. The Tribunal noted that the additional evidence and documentation were critical for determining the issue and set aside the matter to the CIT(A) to consider the additional evidence and decide as per law after providing a reasonable opportunity to the Assessee. 5. Reopening of Assessment under Section 148 and Approval under Section 151 of the Income Tax Act: The Assessee challenged the reopening of assessment, arguing that the reasons for reopening were based on incorrect information regarding foreign remittance and that the approval under section 151 was mechanical. The Revenue maintained that the AO had credible material and followed due process. The Tribunal observed that the CIT(A) did not record findings on this issue. Therefore, the Tribunal set aside this ground to the CIT(A) to decide as per law after providing a reasonable opportunity to the Assessee. Conclusion: The appeal of the Assessee was allowed for statistical purposes, with multiple grounds set aside to the CIT(A) for re-examination and decision as per law. The Tribunal emphasized the need for proper adjudication and providing reasonable opportunities to the Assessee in all matters.
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