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TMI Blog2023 (3) TMI 398X X X X Extracts X X X X X X X X Extracts X X X X ..... d the appeal is admitted for adjudication. 3. Briefly the facts of the case are that the assessment in the case of the assessee was completed under section 147 r.w.s 144 of the Income Tax Act, 1961 (in short 'the Act') vide order dt. 14/12/2018. In the assessment order so passed, the AO has brought to tax, a sum of Rs. 1,00,00,000/- as income from undisclosed sources under section 69 of the Act in absence of any supporting documents furnished by the assessee during the course of assessment proceedings. 4. Being aggrieved, the assessee carried the matter in appeal before the Ld. CIT(A). The Ld. CIT(A) has dismissed the appeal of the assessee holding that the additional evidence submitted in the form of copy of sale deed, copy of Form 15CB/CA and Form 26AS were sent to the AO for verification and a remand report was called. However, the assessee has not availed the opportunity before the AO and has failed to provide certain additional documents as required by the AO to establish the genuineness of the transaction and in absence of the requisite documentation, it can be concluded that the assessee has not been able to provide these documents to justify the transaction and the additi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otal income of Rs. 105,650/-. Thereafter, in response to the notice issued under section 148 of the Act, the assessee has submitted the return of income on 16/05/2018 and the said return of income was also uploaded on the e-filing portal of the Department. It was submitted that the observation of the Revenue that no return of income in response to notice under section 148 has been filed is therefore factually incorrect and it was accordingly submitted that in absence of notice under section 143(2) of the Act, the entire proceedings u/s 147 are again vitiated and are bad in law. In support, reliance was placed on the decision of Hon'ble Supreme Court in case of ACIT and Another Vs. Hotel Blue Moon which was further reiterated by the Hon'ble Supreme Court in case of CIT Vs. Laxman Das Khandelwal in Civil Appeal Nos. 6261-6262 of 2019. Further reliance was placed on the Coordinate Chandigarh Benches decision in case of H.P. Singh and Ors. Vs. ITO (ITA No. 1163/Chd/2018). 9. Per contra, the Ld. DR drawn our reference to the assessment order and submitted that the AO has clearly mentioned that the assessee has not filed the return of income in response to notice u/s 148. It was further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also uploaded on the e-filing portal of the Department. 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, howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsideration. 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. 15. In ground no. 2, 4 & 9, the assessee has challenged the reopening of assessment under section 148 of the Act and the mechanical grant of approval under section 151 of the Act. In this regard, our reference was drawn to the reasons recorded by the AO, it was submitted that the reasons for reopening of the assessment was that the assessee had made foreign remittance of Rs. 1,00,00,000/- to his own account during the Financial Year relevant to the impugned Assessment Year and the source of such remittance could not be verified, in view of the same, the income has escaped assessment. In this regard, it was submitted that the assessee was a Non Resident and an American Citizen and during the Financial Year relevant to the impugned Assessment Year, he had sold his House No. 2308, Sector 35-C, Chandigarh for a sale consideration of Rs. 1,30,00,000/- on 22/06/2010 and out of the sale proceeds, the assessee had purchased REC bonds of Rs. 32,00,000/- as provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lear nexus between the material and formation of belief that the income has escaped assessment. Further, the ld DR fairly submitted that there are no findings recorded by the ld CIT(A) and the matter may be set-aside to the file of the ld CIT(A) to decide the same as per law.
17. We have heard the rival contentions and purused the material available on record. 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. The assessee shall be at liberty to raise the aforesaid contentions as so advised before the ld CIT(A) and thus, the contentions so raised have been left open and not examined by us.
18. In the result, the appeal of the assessee is allowed for statistical purposes.
Order pronounced in the open Court on 09/02/2023. X X X X Extracts X X X X X X X X Extracts X X X X
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