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TMI Blog2024 (9) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... impediment u/s 249(4)(b) of the Act appears quite convincing in the facts of the case. In this circumstances, narrated on behalf of the assessee appeal of the assessee is found to be maintainable before the CIT(A). Revenue has wrongly proceeded on misappreciation of facts of substantive nature. The purchase of property has been construed as sale of property leading to such exorbitant additions and protracted litigation. The verification was put in motion by the AO on such footing. However, in the absence of any reply from the assessee before the AO or before the CIT(A), the correct facts did not surface for consideration of Revenue. Hence in the fitness of things, the matter needs to be remanded back to the file of the AO for determination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther erred in holding that the said appeal as not fit for admission in terms of section 249 of the Act. 2. On facts and in the circumstances of the case and in law, the learned CIT(A)/NFAC erred in not granting sufficient opportunity to the Appellant to make an application under proviso to section 249(4) of the Act, if applicable. 3. On the facts and circumstances of the case and in law, the CIT(A)/ NFAC ought to have appreciated that the Assessing Officer had erred in reopening the assessment under section 147 and completing the same without duly serving the notice under section 148 as required under the law, and further, even though he was not the jurisdictional officer. 4. On the facts and circumstances of the case and in law, the CIT( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gain was accrued as further alleged. In fact, the correct position was opposite. The assessee had actually purchased some property on the same amount during the year where she was merely a co-owner along with her husband. The source of purchase of property was salary earned by the husband and substantial loans secured by husband from HDFC Ltd. amounting to Rs. 3.47 crore. The learned Counsel thus submitted that as against the property of Rs. 3.97 crore purchased, a sum of Rs. 3.47 crore was financed out of bank loans and remaining amount was paid out of the accumulated resources of the husband. The name of the assessee who is spouse of Mr. Jitesh Shah, is inserted only as a matter social security and to cover the risk under General Laws. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 249(4)(b) of the Act. The remaining income assessed towards sale of property in the hands of the assessee is on account of gross misconception of facts by the AO wrongly treating purchase of the property as sale thereof. 6. The plea of the assessee for non workability of impediment under section 249(4)(b) of the Act appears quite convincing in the facts of the case. In this circumstances, narrated on behalf of the assessee appeal of the assessee is found to be maintainable before the CIT(A). 7. We now advert to the affidavit dated 17.06.2024 placed before the Tribunal. The contents of the affidavit are reproduced hereunder : AFFIDAVIT I, Smt. MADHULIKA MISHRA, daughter of Shri Vishnu Kumar Mishra (PAN ASPPM9325H) residing at B 1501, Tower ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received on my email [email protected] to which I responded on 1.3.2022. 1.6 I further state that I was not aware of the reassessment proceedings for AY 2017-18 until after the order under section 148 was passed on 29.3.2022. 2. Letters from National Faceless Appeal Centre seeking clarification u/s 249(4)(b): 2.1 The Income-tax Officer Ward 5(2)(1), Budh Nagar, Noida completed the reassessment under section 147 read with section 144 of the Act vide his Order dated 29.03.2022.1 filed an appeal with the Commissioner of Income-tax (Appeals) on 21.05.2022. 2.2 A letter was issued by the National Faceless Appeal Centre (NFAC) on 26.12.2023 seeking clarification on the amount of tax paid not mentioned and that Form - 35 as incomplete/not filled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hri Jitesh Shah, filed his income-tax returns for AY 2017-18 under section 139(1) of the Act, declaring salaries of Rs. 1,29,01,004/- and a total income of Rs. 1,25,78,710/- and paying total taxes for the year of Rs. 42,64,957/-. 3.3 I state that my spouse, Shri Jitesh Shah, along with me as a Co-borrower, obtained a Housing Loan from Housing Development Corporation Ltd for a sanctioned loan Amount Rs. 3,47,00,000/-. 3.4 I state that my spouse, Shri Jitesh Shah and I had sufficient funds to pay the consideration of the flat purchased of Rs. 3,97,74,132/- 3.5 I state that I had not sold immovable property at B 1501, Tower 4, Enchante, Lodha New Cuffe Parade, Wadala, Mumbai 400 022 for a sale consideration of Rs. 3,97,74,132/- as mentioned er ..... X X X X Extracts X X X X X X X X Extracts X X X X
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