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Judgment
PER NAVEEN CHANDRA, ACCOUNTANT MEMBER:-
These two appeals by the assessee are preferred against the order of the Commissioner of Income Tax (Appeals)-30, New Delhi dated 05.12.2024 arising out of the assessment order dated 31.01.2022 passed by the Assessing Officer, DCIT, Central Circle – 30, Delhi (hereinafter referred as “the AO”) under section 153A read with section 144 of Income Tax Act, 1961 (hereinafter referred as “the Act”) pertaining to Assessment Year 2019-20 and 2020-21, respectively.
Since the above captioned appeals were heard together and the facts in issues are identical, both the appeals are being disposed of by this common order for the sake of convenience and brevity.
The grounds of appeal of the assessee in ITA No.4852/Del/2025 are as under :
1.“On the facts and circumstances of the case and in law, the initiation of assessment proceedings and the issue/service of notice(s) are not in accordance with the provisions of the Act and therefore, the assessment order passed by the assessing officer is liable to be quashed and CIT(A) erred in not holding so.
2.On the facts and circumstances of the case and in law, the notice issued under section 153A is bad in law and without jurisdiction and accordingly the said notice and the assessment order passed on the foundation of such notice are liable to be quashed and CIT(A) erred in not holding so.
3.On the facts and circumstances of the case and in law, the assessment order passed by the assessing officer is bad-in-law, without jurisdiction and barred by limitation and CIT(A) erred in not holding so.
4.On the facts and circumstances of the case and in law, the assessment order passed by the assessing officer is illegal and non-est as the order has been passed without valid DIN and CIT(A) erred in not holding so.
5.On the facts and circumstances of the case and in law, the addition of Rs. 3,28,68,393/- made by the assessing officer of the Act is beyond the scope of provisions of section 153A of the Act and, therefore, the addition made by the AO is liable to be deleted and CIT(A) erred in not holding so.
6.On the facts and circumstances of the case and in law, the CIT(A) erred in confirming the addition made by the Ld. Assessing Officer of Rs. 3,28,68,393/- on account of alleged commission income.
7.On the facts and circumstances of the case and in law, the assessing officer erred in invoking provisions of section 144 of the Act and CIT(A) erred in not holding so.
8.On the facts and circumstances of the case and in law, the assessment order passed by the assessing officer is contrary to the provisions of section 153D of the Income Tax Act, 1961 and CIT(A) erred in not holding so.
9.On the facts and circumstances of the case and in law, the ld. CIT(A) erred in not adjudicating the appeal on merits and setting aside the case to the file of the assessing officer in terms 251(1)(a) of the Act.”
Brief facts of the case are that the assessee is a firm and electronically filed its return of income u/s 139 of the Act for AY 2019-20 on 19.03.2020 declaring income of Rs.1,28,310/-. The assessment order under section 153A r.w.s. 144 of the Act emanates from the search conducted u/s 132 of the Act on 26.10.2022 in the case of the assessee along with other cases of Sanjay Jain and Mehta Group. As there was no representation from the assessee the AO treated the assessee as beneficiary of receipt of commission income of Rs.3,28,68,393/-calculated @2.5% on total receipt of Rs.1,314,735,715/- for A.Y. 2019-20 and Rs.1,08,11,953/- calculated @2.5% on total receipt of Rs.43,24,78,133/- for A.Y. 2020-21. Upon appeal before the CIT(A), the CIT(A) set aside the case to the AO for fresh adjudication. Aggrieved, assessee is before us.
Before us, the assessee has challenged the impugned order on legal grounds as well as on merits. The assessee has also taken grounds of DIN and 153D of the Act which have now been rendered academic on account of amendment carried out under section 292BA of the Act made in the Act.
Per contra, learned DR submitted that since the CIT(A) has invoked power under section 251(1) and has set aside the assessment to the file of AO, the finding should not be disturbed.
We have heard the rival submissions and perused the material available on record. We find that the AO has passed assessment order ex-parte under section 144 as the assessee was not represented before the AO. Even before the CIT(A), there was no representation and accordingly, the CIT(A) had invoked the powers under section 251(1)(a) of the Act to set aside the file to the AO. In such factual matrix, we are of the considered view that there is no interference called for in the decision of the CIT(A). The grounds of appeal is decided for both the AYs in aforesaid terms.
In the result, both the appeals ITA Nos. 4852 & 4853/DEL/2025 are dismissed.