Home Case Index All Cases Income Tax Income Tax + AT Income Tax - 2023 (3) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
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.
|