IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH MUMBAI BEFORE HON’BLE SHRI SANDEEP GOSAIN, JUDICIAL MEMBER (Assessment Year: 2016-17)

Meena Hasmukh Savla Vs. ITO – 27(2)(1)

702, Pranav Residency, 302 Vashi Railway Stn Bldg, Bhimani Street, Matunga, Vashi.

Mumbai.

PAN/GIR No. AADPS1482K (Applicant) (Respondent)

Assessee by Shri Satyaprakash Singh Revenue by Shri Sunny Kachhwaha, Sr. DR Date of Hearing 23.01.2025 Date of Pronouncement 18.02.2025 आदेश / ORDER PER SANDEEP GOSAIN, JM:

The present appeal has been filed by the assessee challenging the impugned order 13.05.2024 passed u/s 250 of the Income Tax Act, 1961 (‘the Act’), by the Commissioner of Income Tax (Appears)-51, Mumbai for the assessment year 2016-17.

2. The brief facts of the case are that the assessee is an individual and deriving income from salary and other sources. The return of income for the year under consideration was filed thereby declaring total income at Rs. 11,34,200/- and the same was processed u/s 143(1) of the Act. Subsequently the assessment was reopened by issuing notice u/s 148 of the Act and while passing the order, the AO made following additions.

a. Addition of Long Term Capital Gain (LTCG) claimed as exempt u/s 10(38) of the Act u/s 68 of the Act of Rs.

22,20,150/-

b. Addition of commission paid @ 3% of the LTCG of Rs.

65,075/-

Total - 22,85,225/-

2. Against these additions assessee preferred appeal before Ld. CIT(A), however, the said appeal of the assessee was dismissed. Therefore, aggrieved by the order of Ld. CIT(A) assessee has preferred the present appeal before me, on the grounds mentioned herein below:

1. The Assessment Order passed under section 147 r.w.s144B is against the provision of Income Tax and liable to be quashed on account of the following.-

(i) Notice dated 22/07/2022 issued under section 148 of the Act is invalid and bad in law as the same was issued without DIN. Separate intimation letter dated 23/07/2022 showing DIN No. cannot validate the notice issued on 22/07/2022 under section 148 of the Act.

(ii) Notice under section 148 of the Act was issued by JAO who had no jurisdiction to issue such Notice after 29/03/2022 and it is only FAO can issue notice under section 148 of the Act, as provided in section 151 of the Act.

2 On the facts and circumstances of the case and in law the C.I.T (Appeals) has erred in confirming the addition made under section 68 of the Income Tax Act, 1961 amounting to Rs 22,20,150/-on account of Long Term Capital Gain claimed by the appellant.

3 On the facts and circumstances of the case and in law the C.L.T. (Appeals) has erred in confirming the addition made under section 69C of the Income Tax Act, 1961 amounting to Rs.65,075/- being commission paid @ 3% of the Long Term Capital Gain.

4 The appellant craves to alter add, delete, substitute or modify and other grounds of appeal.

3. All the grounds raised by the assessee are interrelated and interconnected and relates to challenging the order of CIT(A) in upholding the additions made by AO u/s 68 of the Act and also on account of addition of commission paid @ 3% of the LTCG. Therefore, I have decided to take up all the grounds together and adjudicate the same through the present consolidated order.

4. The Ld. AR appearing on behalf of the assessee reiterated the same arguments as were raised by him before the lower authorities and also relied upon the written submissions mentioned herein below:

1.1 The appellant is an individual deriving income from Salary and Other Sources. Return of Income for the Assessment Year under consideration was filed on 24/06/2016 declaring total income at Rs.11,34,200/-, and the same was processed under section 143[1] of Income Tax Act, 1961.

1.2 Subsequently, the assessment was reopened by issuing notice under section 148 of Income Tax Act, 1961 on 22/07/2022. In response to notice under section 148, the appellant had filed return of income on 20/08/2022. The Appellant objected the reopening of the assessment proceedings vide her letter dat