TaxTMI 
TaxTMI 
TaxTMI 
2025 (5) TMI 815
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....en three years has already elapsed from the end of the relevant Assessment Year. 2. In the facts and circumstances of the case and law, the Learned Commissioner of Income Tax (Appeals) [hereinafter also referred to as 'the CIT(A)'] has erred in upholding the action of the Ld. Assessing Officer who obtained approval of Principal Commissioner of Income Tax; whereas since the impugned notice dated 28.07.2022 issued under section 148 and the impugned order dated 25.07.2022 passed under section 148A(d) were issued/passed beyond three years from the end of the relevant Assessment Year; hence approval ought to have been obtained pursuant section 151 (ii); thereby vitiating the entire re-assessment proceeding. Reliance is placed on the decision of Hon'ble Supreme Court in the case of UOI vs. Rajeev Bansal [2024] 167 taxmann.com 70 (SC) [03-10-2024] 3. In the facts and circumstances of the case and law, the Learned Commissioner of Income Tax (Appeals) has erred in dismissing the appeal of the Appellant in limine without appreciating the fact that the impugned property was acquired in the financial year 2009-10(i.e. AY 2010-11) and not during relevant AY 2017-18; hence allege....
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.... that assessment in this case was completed u/s. 147 r.w.s. 144B of the Income Tax Act, 1961 ("the Act") vide order dt. 18-05-2023; wherein the AO invoked the provisions of section 56(2)(vii)(b) of the Act and brought to tax, the difference between the stamp duty value and the sale consideration amounting to Rs. 16,46,373/- in respect of transfer of immoveable property in the hands of the assessee. 3. Being aggrieved, the assessee carried the matter in appeal before the Ld. CIT(A), who has since sustained the order and the findings of the AO. Being aggrieved, the assessee is in appeal before us. 4. During the course of hearing, the Ld. AR submitted that in Ground No. 1, the assessee has challenged the action of the Ld. CIT(A) in sustaining the action of the AO in re-opening the assessment u/s. 147 of the Act, without fulfilling the jurisdictional requirements. In this regard, it was submitted that in the notice issued u/s. 148A(b) of the Act, dt. 24-05-2022, the quantum of alleged escaped income has been stated at Rs. 32,92,746/-. Thereafter, in the order passed u/s. 148A(b) of the Act, dt. 25-07-2022, the alleged escaped income has again been quantified at Rs. 32,92,746/- and th....
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....n the case of Siemens Financial Services (P.) Ltd., vs. DCIT [2023] 154 taxmann.com 159 and Vodafone Idea Limited vs. DCIT [WP No. 2678/2022, dt. 06-02-2024]. 7. It was submitted that exactly identical matter has come up before the Co-ordinate Bench of the Tribunal in the case of Manish Jagdish Joshi vs. CIT (DRP-3), [2024] 165 taxmann.com 836 (Mumbai-Trib.) pertaining to AY. 2017-18 as well as in the case of ACIT vs. Ms. Asha P. Kedia in ITA No. 3672/Mum/2024 r.w. C.O. No. 181/Mum/2024, dt. 28-03-2025 wherein following the decisions of the Hon'ble Bombay High Court, the matter has been decided and the said decisions equally apply in the instant case. 8. It was accordingly submitted that notice issued u/s. 148 of the Act dt. 28-07-2022 is invalid as the sanction was not obtained as per the provisions of section 151(ii) of the Act and the consequential order so passed by the AO, therefore, deserve be set aside and the necessary relief be provided to the assessee. 9. Per contra, the Ld.DR has relied on the order of the lower authorities. 10. We have heard the rival contentions and perused the material available on record. We find that the matter has been extensively discussed by ....
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....ecified Authority. The second proviso to section 148 further provides that no such approval shall be required where the AO with the prior approval of the Specified Authority has passed the order under section 148A(f) of the Act. Further, Explanation 3 clarifies that the Specified Authority for the purpose of section 148 shall be the Specified Authority as referred to in section 151 of the Act. 11. Further, section 151 of the Act deals with the Specified Authority for section 148 and section 148A of the Act, and the same reads as follows: - "151. Specified authority for the purposes of section 148 and section 148A shall be,- (i) Principal Commissioner or Principal Director or Commissioner or Director, if three years or less than three years have elapsed from the end of the relevant assessment year, (ii) Principal Chief Commissioner or Principal Director General or Chief Commissioner or Director General, if more than three years have elapsed from the end of the relevant assessment year." 12. Therefore, from the plain reading of section 151 of the Act, it is evident that in the case where more than three years have elapsed from the end of the relevant assessment year, the Sp....
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....2, the AO issued a notice under section 148 of the Act. 16. 16. We find that while considering the similar issue and similar submissions the Hon'ble Jurisdictional High Court in Siemens Financial Services (P.) Lid. v. Dy. CIT [2023] 154 taxmann.com 159/457 ITR 647 (Bombay), held that TOLA would not affect the scope of section 151 and sanction of Specified Authority was to be obtained in accordance with the law existing when the sanction was obtained. It was further held that where the Assessing Officer issued a reopening notice beyond the period of three years, approval was required to be taken as per provisions of amended section 151 from the Principal Chief Commissioner or Principal Director General or Chief Commissioner or Director General. The relevant observations of the Hon'ble High Court, in the aforesaid decision, are reproduced as follows: - "20. Under Section 151 "specified authority" for the purposes of section 148 and section 148A shall be, if three years or less than three years have elapsed from the end of the relevant assessment year, Principal Commissioner or Principal Director or Commissioner or Director. If more than three years have elapsed from the e....
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.... Income-tax-8 ('PCIT-8') which is bad in law as the approval should have been obtained in terms of section 151(1) and not section 151(1) of the Act and the PCIT-8 cannot be the specified authority as per section 151 of the Act. Further, even in the affidavitin-reply, the department has accepted that the approval obtained is of the Principal Commissioner of Income-tax-8' and, hence, such an approval would be bad in law. 25. TOLA, enacted on 29th September 2020 and came into force on 31st March 2020. It inter alia, provided for a relaxation of certain provisions of the Income-tax Act, 1961. Where any time limit for completion or compliance of an action such as completion of any proceedings or passing of any order or issuance of any notice fell between the period 20th March 2020 to 31st December 2020, the time limit for completion of such action stood extended to 31st March 2021. Thus, TOLA only seeks to extend the period of limitation and does not affect the scope of section 151. 26. The Assessing Officer cannot rely on the provisions of TOLA and the notifications issued thereunder as section 151 has been amended by Finance Act, 2021 and the provisions of the amended ....
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....nded by Finance Act 2021, no notice under section 148 of the Act shall be issued after the expiry of three years but not more than ten years, unless the AO is in the position of documents or evidence which reveal that income amounting to Rs. 50 lakh or more chargeable to tax has escaped assessment. As noted above in the present case, the income which is alleged to have escaped assessment is less than Rs. 50 lakh. We find that the Hon'ble Jurisdictional High Court in Bhavesh Maganlal Dharod v. ITO [2023] 155 taxmann.com 335 (Bombay) held as follows:- "3.........Under Section 149(1)(b) of the Act no notice can be issued if the amount is less than Rs. 50 lakhs. Further, if Section 149(1)(b) of the Act is applicable, then the approval could be granted only by the Principal Chief Commissioner and not Principal Commissioner as in this case." 19. Thus, in the present case, it is discernible that the notice under section 148 of the Act was issued not only in contravention of the provisions of section 151 as the sanction of the concerned Specified Authority was not obtained, but the same is also time-barred as per the provisions of section 149 of the Act as the same was issued after....
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....sdictional High Court in the case of Vodafone India Idea Ltd. has also clearly held that proviso to section 151 of the Act has been inserted w.e.f. 01.4.2023 and therefore shall not be applicable to the A.Y. 2018-19. In effect, the Hon'ble High Court has clarified that provisos to section 151 of the Act would be effective from 01.04.2023 onwards and would not be applicable to the prior period. Thus, the impugned notice dated 27.07.2022 u/s 148 of the Act, as issued by the AO in the instant case by taking approval from the Ld. Pr. CIT-2, Mumbai but not from the Ld. Pr. CCIT and in pursuance to that the assessment order dated 23.01.2023 u/s 147 r.w.s. 144 & 144B of the Act, is liable to be quashed being void, ab-initio and thus, the same is quashed accordingly. Thus, the CO is allowed." 12. In the instant case, it is not in dispute that firstly, notice u/s. 148 of the Act has been issued on 25/07/2022, beyond three years from the end of the relevant assessment year i.e., A.Y. 2017-18 and secondly, the approval has been obtained from the Pr. Commissioner of Income Tax - 20, Mumbai vide approval dated 22-07-2022 as so stated in the notice so issued u/s 148 of the Act. In terms o....