Seema Katar vs ITO Ward -49 (2) Delhi

PERMADHUMITA ROY, JUDICIAL MEMBER:

The assessee has filed an application for recalling of the order dated 06.11.2025 passed by the Tribunal whereby and whereunder the appeal preferred by the assessee in ITA No.5567/Del/2025 for Assessment Year 2017-18 stood dismissed on merit particularly in the absence of any representation made by the assessee before the Bench at the time of hearing of the matter. It is contended by the ld. Authorized Representative of the assessee that the notice of hearing dated 28.10.2025 and 06.11.2025 were sent to the email-id being [email protected] and Mrs. Yashika Bhandari the CA of the applicant which was genuinely overcited by the CA as a result of which the assessee could not be represented. In support of such contention, an affidavit affirmed by the said Chartered Accountant has duly been filed, considering which the reasons for non-appearance before the Bench on 06.11.2025 seems to be genuine and therefore, the order is recalled.

However, keeping in view the issue involved in the matter particularly the jurisdictional ground raised by the assessee even before the Ld. CIT(A), this Bench finds it fit and proper to deal with the appeal itself at this stage, which has not been opposed by the Ld. DR with all his fairness.

The assessee being a non-resident based in Belgium filed her return of income for Assessment Year 2017-18 declaring total income at Rs.9,73,980/-, which was selected for scrutiny under CASS on account of substantial cash deposits during demonetization period and which according to the Revenue was not commensurate with the returned income during the period of demonetization. The assessment was finalized upon making addition of Rs.28,00,000/- under Section 69A on account of unexplained money. Further, addition under Section 115BBE of the Act was also made @60% plus surcharge @25% on the tax to the tune of Rs.37,73,980/- along with interest u/s 234A, 234B, 234C and 234D of the Act, which was confirmed by the Ld. First Appellate Authority. Hence,the instant appeal before us.

Heard both the parties and perused the records. The assessee has raised jurisdictional issue before the Ld. First Appellate Authority on the count that the assessment framed under Section 143(3) of the Act is invalid due to lack of jurisdiction. As the assessee is a non-resident during the period under consideration, such status though well-established through income tax return filed by the appellant and further is mentioned in the first paragraph of the assessment order itself dated 02.11.2019 being ‘non-resident’, the jurisdiction to assess the assessee’s income belongs to Income Tax Officer or Commissioner in charge of International Taxation having regard to the non-resident status of the appellant and therefore, the Ld. Assessing Officer being ITO, Ward-49(2), Delhi, has exceeded its jurisdictional authority as not statutorily empowered to pass the assessment order against the assessee and in that view of the matter, the assessment is not sustainable in the eyes of law and therefore, liable to be quashed as the crux of the submissions made by the Ld. Counsel for the assessee Mr. Lalit Mohan. Such non-resident status of the appellant was supported by the evidences before the Ld. Assessing Officer, which was duly acknowledged by the said officer as reflected at page-4 of the assessment order itself. Further that assessment unit also acknowledged while proceedings were pending before the Ld. CIT(A) that the case genuinely parting to a non-resident individual and was transferred to International Taxation CIT(A). The above facts have not been able to be controverted by the Ld. DR. It is found where the assessee is admittedly a non-resident, the jurisdiction to assessee has wrongly been exercised by the ITO (Ward-49(2), Delhi.

Under these facts and circumstances, we have further considered the judgment relied upon by the Ld. AR passed by the Hon’ble Bombay High Court in the case of Nimir Kishore Mehta vs ACIT holding that the assessee since was a non-resident Indian, jurisdiction would lie with the Income Tax Officer (International Taxation) and the Assessing Officer had no jurisdiction to issue notice under Section 148A(b) of the Act.

Thus, considering the entire aspect of the matter, the order impugned under Section 143(3) passed by the ld. Assessing Officer being ITO, Ward-49(2), Delhi, further confirmed by the ld. First Appellate Authority is found to be absolutely erroneous without jurisdiction and therefore quashed.

In the result, the appeal of the assessee is allowed.

Finally, the Miscellaneous Application as well as the appeal of the assessee are allowed.