TaxTMI 
TaxTMI 
TaxTMI 
2025 (8) TMI 44
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....als) is erroneous and not tenable in law and on facts. (b) The appellant craves leave to add, alter or amend any/all of the grounds of appeal before or during the course of the hearing of the appeal." 3. The relevant facts giving rise to this appeal are that the assessee, engaged in the real estate business as Builder & Developer, was searched under section 132(1) of the Income Tax Act, 1961 (hereinafter 'the Act') on 29.01.2009. Consequential assessment of the relevant year was completed under section 153A/143(3) of the Act, vide order dated 03.08.2011, at income of Rs. 4,34,09,680/-. Thereafter, on the basis of findings of the Ld. CIT(A) in his order dated 29.10.2013 in the case of Saamag Developers Pvt. Ltd. in Appeal No.25/11-12 and the order dated 28.10.2013 in the case of Pyramid Realtors Pvt. Ltd. in Appeal No. 21/11-12., the case of assessee was reopened under section 148 of the Act vide notice dated 19.03.2014. Saamag Developers Pvt. Ltd. and Pyramid Realtors Pvt. Ltd. were the business concerns of Saamag Group of cases which were searched on 29.01.2009. The relevant findings of the Ld. CIT(A) in the above-mentioned cases are extracted hereunder: - Saamag Developers Pv....
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....ities in the FY 2005-06. However, the Assessing Officer (hereinafter, the 'AO') was not satisfied with the explanation of the assessee; therefore, he made the consequential addition of Rs. 3,55,88,631/- (Rs.2,59,47,379 + Rs. 96,41,952/-). Aggrieved, the assessee filed appeal before the CIT(A) raising the legal/jurisdictional/technical grounds along with the validity of additions on merit also. The Ld. CIT(A) decided the jurisdictional issue i.e. the assumption of jurisdiction under section 148 of the Act in favour of the assessee by holding that the notice under section 148 of the Act for the relevant year issued on 19.03.2019 was barred by limitation. The relevant part of the impugned order reads as under: - "Section 150(1), inter alia, provides that there is no time limit to issue notice u/s 148 of the act when the case is reopened u/s 147 in order to give effect to any finding or direction contained in an order passed u/s 250 of the act. Explanation 3 to section 153(3), as it stood at the time of passing the appellate order in the case of Saamag Developers Pvt. Ltd. & Pyramid Realtors Pvt. Ltd., inter alia, provides that where by an order passed u/s 250 any income is exclude....
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....andate that the CIT(A) can issue direction in case of the other person only after hearing such other person. Thus, the Ld. Sr. DR argued vehemently that the Ld. CIT(A) had erred in holding that the direction issued by her predecessor while deciding appeals in cases of Saamag Developers Pvt. Ltd. and Pyramid Realtors Pvt. Ltd. as mentioned above without affording opportunity to the assessee could not be termed as direction under section 250 of the Act and thus, the provisions of section 150 of the Act did not get attracted in this case. He further, argued that such finding of the Ld. CIT(A) was contrary to the law and therefore, the same required to be set aside by upholding the assessment order. It was specifically submitted that there was no condition prescribed in the section 250 of the Act as "IF SUCH OTHER PERSON WAS GIVEN AN OPPURTUNITY OF BEING HEARD BEFORE THE ORDER U/S 250 WAS PASSED" mentioned by the Ld. CIT(A). The Ld. Sr. DR submitted that such imaginary condition was coined by the Ld. CIT(A). The Ld. Sr. DR contended that such findings of the Ld. CIT(A) should be quashed being contrary to the law. The Ld. Sr. DR, drawing our attention the provisions of section 153(3) of....
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....sition about the invalidity of the notice issued under section 148 of the Act. Hence, this appeal itself was not maintainable. The issue in dispute raised by the Revenue was quantum of addition and not the validity of reopening the assessment. The Ld. Counsel submitted that the notice issued under section 148 of the Act was barred by limitation as the same had been issued beyond the time prescribed under section 149 read with section 150 & Explantion-3 to the section 153 of the Act. 5.1 The Ld. Counsel contended that the Ld. Sr. DR did not contradict the finding of the Ld. CIT (A) that an opportunity of being heard to the assessee was not granted by the then CIT(A) deciding the appeals in the cases of Saamag Developers Pvt. Ltd. and Pyramid Realtors Pvt. Ltd. It was submitted that the Ld. CIT (A) had given the categorical finding that an opportunity of being heard to the assessee was not granted by the then CIT(A) deciding the appeals in the cases of M/s Saamag Developers Pvt. Ltd. and M/s Pyramid Realtors Pvt. Ltd. after verification of their appeal records. It was contended that in view of the section 150 of the Act read with Explanation 3 to section 153 of the Act, the allowanc....
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.... such an opportunity was not given, has been recognized by the revenue in the order disposing of the objections dated 20.10.2011, where it has been observed that there was no need to have afforded an opportunity to the petitioner. Even in the counter affidavit, the revenue has taken the stand that it was not at all necessary for the Income Tax Appellate Tribunal to have allowed an opportunity of hearing to the petitioner because that was in respect of the assessment proceedings pertaining to the said society. 15. From the above, it is clear that no opportunity of hearing was given to the petitioner prior to the passing of the order dated 13.01.2010 by the Income Tax Appellate Tribunal, Hyderabad in the cases of the said society. As such, one essential ingredient of Explanation 3 was missing and, therefore, the deeming clause would not get triggered. That being the position, Section 150 would not apply and, therefore, the bar of limitation prescribed by Section 149 is not lifted. 16. The learned counsel for the revenue submitted that an opportunity of hearing could not be given to the petitioner because at the stage when the Tribunal at Hyderabad was hearing the appeal pertainin....
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....the order of the Hon'ble Delhi High Court in the case of Rural Electrification Corporation Ltd. (supra), contended that the deeming clause of extension of time for reopening the case would not get triggered as sections 149 and 150 of the Act would not apply in view of the Explanation-3 to the section 153 of the Act as the assessee was never heard by the Ld. CIT(A) deciding appeals in the cases of M/s Saamag Developers Pvt. Ltd. and M/s Pyramid Realtors Pvt. Ltd.; therefore, the normal provisions of limitation under section 149 of the Act would apply in the present case. Since the notice under section 148 of the Act had been issued to the assessee after the expiry of six years; therefore, the said notice was barred by limitation. 5.5 The Ld. Counsel further contended that the perusal of the reason to believe clearly showed that the case was reopened by the AO on 19.03.2024 based on the observations made by the Ld. CIT (A) in his orders dated 28th & 29th October 2013 in the cases of M/s Saamag Developers Pvt. Ltd. and M/s Pyramid Realtors Pvt. Ltd. It was contended that the provisions of section 149 of the Act empowers the AO to issue notice only for six AYs from the end of the ....