TaxTMI 
TaxTMI 
2026 (7) TMI 1481
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....ribed under section 148 read with section 148A, the notice is invalid and the consequential reassessment is void ab initio. 3) The Learned CIT(A), NFAC failed to appreciate that any notice issued on OR after 01.04.2021 mandatorily attracts compliance with section 148A, and non-compliance with such statutory pre-conditions vitiates the entire reassessment proceedings. 4) The Learned CIT(A), NFAC further erred in not holding that the reassessment notice for AY 2013-14, though dated 31.03.2021, was actually issued on 01.04.2021, i.e. beyond the permissible three-year limitation, and was sanctioned by the PCIT-1, Hyderabad instead of the competent authority under section 151(ii) (PCCIT/CCIT), thereby rendering the proceedings wholly without jurisdiction and void ab initio. 5) The learned CIT(A) ought to have appreciated that notice u/s. 148 dt: 31.03.2021, issued on 01.04.2021, is issued beyond a period of six years in violation of provisions of section 149(1) of the IT Act, therefore, the learned Commissioner erred in not holding the assessment as null and void. 6) The appellant craves leave to add to, amend OR modify the above grounds of appeal eit....
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....tive of the Assessee has also relied upon the Judgment of Hon'ble jurisdictional Telangana High Court in the case of Kalyan Chillara vs. Dy. CIT [2024] 465 ITR 729 (Telangana-HC) and submitted that the notice issued by the Assessing Officer on or after 01.04.2021 are held as barred by limitation as the Assessing Officer was supposed to follow the provisions of sec. 148A of the Act. Thus, the learned Authorised Representative of the Assessee has submitted that the notice issued by the Assessing Officer under old provisions of sec. 148 is invalid and liable to be quashed. 6. On the other hand, the learned DR has filed a report of the Assessing Officer and submitted that the Assessing Officer has digitally signed the notice u/sec. 148 of the Act on 31.03.2021 and therefore, the notice dated 31.03.2021 is deemed to have been issued on 31.03.2021 itself. The Assessing Officer has stated that the notice was not issued off-line and was signed and sent through ITBA. Thus, the learned DR has submitted that once notice was digitally signed on 31.03.2021 then, issued within he period of limitation. 7. We have considered the rival submissions as well as relevant material on record. There....
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....A e-mail software system on 31-3-2021, to dispatch the emails was not due to any software glitch. The time taken by the software system was as per the programming of the system, as admitted in the Compliance Affidavit. The programming to dispatch the Notices in a controlled manner and batch mode was a preexisting fact and to the knowledge of the Department. The time taken in dispatch of the e-mail on 31-3-2021, was therefore as per the controls set in the ITBA system. 26.20. We are in respectful agreement with the law laid down by the various High Courts in Daujee Abhushan (supra), Santosh Krishna HUF(supra), Mohan Lal Santwani (supra), Advance Infradevelopers (P) Ltd. (supra) and Yuvraj v ITO (supra), that for determining when Notices were issued, the date and time of when the ITBA e-mail software system is triggered and the Notices leave the last ITBA server would be considered. 26.21. We therefore answer question no. (II) in affirmative and hold that dispatch as per section 13 of the Act of 2000, is a sine qua non and happens when the electronic mail message leaves the ITBAS servers. 26.22. We answer question no. (III) against the Department and hold t....
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....hat, the notices issued by any income tax authority will be visible to the assessee after logging in under E-Proceeding tab in the E-filing portal and that an e-mail may also be sent to the registered e-mail address of the assessee. It also mentions that a text message notifying a real time alert to the assessee's may also be sent to the mobile number registered on the E-filing website. 28.4. The E-Proceedings, as per the Notification No. 4/2017 is optional. The assessee's have to register for the same and can also choose to opt out of it by notifying the Department. 28.5. It is unclear to us as to why e-mail based communication of notices is made optional in the Notification No. 4/2017, despite it being the statutorily prescribed mode of service through electronic transmission. Further, the ITBA portal itself is programmed in such a way that it triggers the e-mail software system when a notice is generated by the JAO and an authenticated copy of the same is thereafter also uploaded in the E-filing portal of the assessee, hence the Department cannot contend that it had done away with e-mailing of notices issued. Most importantly, the Department has been consistent....
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....sued by the Assessing Officer. Going by the screen-shot taken from ITBA portal and relevant case laws referred to by the Learned Counsel for the Assessee in support of their contentions, no dispute with regard to the fact that, notice issued under section 148 of the Act dated 31.03.2021 was issued on 01.04.2021 at 6.03 hours which is evident from email sent from [email protected] to the email ID of the assessee [email protected]. Although, the learned Sr. AR for the Revenue refers to the digitally signed notice under section 148 of the Act which was on 31.03.2021 at 6.40 hours, in our considered view, the mere generation of notice on the ITBA portal and signing the same, is not sufficient for satisfying the test of issue and it is only when the notice has been dispatched, it would be declared to be issued. In the present case, there is no dispute with regard to the fact that, as per the email communication from the Department, the notice has been sent to the assessee on Thursday i.e., on 01.04.2021 at 6.03 hours and from the above, it is very clear that, notice under section 148 of the Act has been issued and served on the assessee on 01.04.2021. This legal p....
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....se (b) of section 148A of the Income Tax Act, 1961. Thereafter, pass an order under section 148A(d) of the Income Tax Act, 1961 within one month from the end of the month, in which time or extended time allowed to furnish a reply as per clause-(b) expires and issue notice under section 148 of the Act. In the present case, going by the facts available on record, the Assessing Officer has issued notice under section 148 of the Act without following the due procedure provided under section 148A of the Income Tax Act, 1961, which is evident from the notice issued under section 148 of the Act dated 01.04.2021 and subsequent assessment order passed by the Assessing Officer under section 147 r.w.s. 144B of the Income Tax Act, 1961 dated 29.03.2022. Further, the Assessing Officer has taken approval from the Pr. CIT instead of from the Pr. CCIT as required u/sec. 151 of the Income Tax Act, 1961, where the assessment has been reopened beyond 3 years from the end of the relevant assessment year. Therefore, in our considered view, notice issued u/sec. 148 of the Act on 01.04.2021 without due procedure provided u/sec. 148A of the Act is illegal, void and thus, consequential assessment order pas....
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....ional Assessing Officer's act of generating notice in the Income Tax Business Application portal on March 31, 2021, without dispatching the notice meets the test of the expression "shall be issued" in section 149 of the Act of 1961, and saves the notices from being time barred ? .... .... ... 24. With the aforesaid judicial precedents and the fact that the Delhi High Court has extensively dealt with these contentions (which have also been the contention of the learned Senior Standing Counsel for the Income Tax, for the respondents, in the present batch of writ petitions), and rendered the judgment in favour of the assessee, and which has not been further challenged by the respondent-Department till now. Therefore, we also are fully in agreement and endorse the views laid down by the Division Bench of the Delhi High Court in the case of Suman Jeet Agarwal (supra) and hold that the impugned notices in all these batch of writ petitions are barred by limitation under Sections 148 and 149 of the Act, since the said notices have left the I.T.B.A. portal on or after 01.04.2021." 7.7. Accordingly, in the facts and circumstances of the case, when the notice u/sec. 1....
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....tion of issue of notice under section 148 at the Act is Pr. Chief Commissioner of Income Tax, if more than 3 years have elapsed from the end of the relevant assessment year. In the present case, there is no dispute with regard to the fact that, notice issued for the assessment year 2016-2017 on 01.04.2021 is beyond 3 years from the end of the relevant assessment year and consequently, the Assessing Officer ought to have taken sanction from the Pr. Chief Commissioner of Income Tax instead of Pr. Commissioner of Income Tax, Hyderabad-4, Hyderabad. Therefore, on this count also, notice issued under section 148 of the Income Tax Act, 1961 on 01.04.2021 is invalid and consequent assessment proceedings are bad in law and liable to be quashed. 11. The assessee has relied upon the decision of ITAT, Hyderabad Bench, Hyderabad in the case of Iqbal Ali Jaweed, Hyderabad vs., ITO [INT. TAXN]-1, Hyderabad (supra), in support of his contention. The Coordinate Bench of Hyderabad Tribunal on identical set of facts has held as under : "11. We have heard both the parties, perused the material on record and the orders of the authorities below. There is no dispute with regard to the ....
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....d after due procedure final notice u/sec. 148 of the Act dated 30.07.2022 was issued. The assessee contends that any re-assessment notice issued u/sec. 148 of the Act after 1st April, 2021 falls under New Scheme of re-assessment proceedings and as per sec. 151, the approval of the Specified Authority as specified therein should be obtained. According to the assessee, under New Scheme of re-assessment proceedings, the Specified Authority u/sec. 151(ii) of the Act, in case an assessment is reopened after a period of three years from the end of the relevant assessment year, the Principal Chief Commissioner or Principal Director General are the Specified Authority(ies). Since in the present case, the Assessing Officer has issued notice u/sec. 148 of the Act dated 30.07.2022 after approval from Principal Commissioner of Income Tax-1, Hyderabad, the said approval is not in accordance with provision of sec. 151(ii) of the Act and consequently, the notice issued by the Assessing Officer and assessment order passed u/sec. 147 r.w.s. 144C(13) of the Act dated 02.03.2024 is illegal, void abinitio and liable to be quashed. 7.1. There is no dispute with regard to the fact that the Asse....
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....see has relied upon the decision of ITAT, Mumbai in the case of ACIT vs. Manish Financial ITA. No. 5055/Mum./2024 wherein the Tribunal after considering the relevant provisions of law and also by following decision of Hon'ble Supreme Court in the case of Union of India vs., Rajeev Bansal (supra) held as under : "In assessee's case from the perusal of para 3 of the notice issued under section 148 for AY 2016-17 we notice that the same is issued with the prior approval of Pr.CIT-19 Mumbai accorded on 29.07.2022 vide reference No. Pr.CIT-19/148/2022-23 and this fact is not contravened by the ld DR. For AY 2016-17, the period of three years have elapsed as of 31.03.2020 and the notice is issued beyond three years on 30.07.2022. Therefore as per the decision of the Hon'ble Supreme Court, the approval should have been obtained under the amended provisions of section 151(ii) of the Act i.e. the approval should have been obtained from the Principal Chief Commissioner whereas the approval has been obtained from Pr. CIT as stated in the notice under section 148 itself. Therefore we see merit in the contention of the assessee that the notice under section 148 for AY 2016-17 i....
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....ining prior approval from the Principal Commissioner of Income Tax-1, Hyderabad dated 27.07.2022 and consequential final assessment order dated 02.03.2024 passed by the Assessing Officer u/sec. 147 r.w.s. 144C(13) of the Act is illegal, void abinitio and thus, we quash the final assessment order dated 27.07.2022 passed by the Assessing Officer." 12. In this view of the matter and considering the facts and circumstances of the present case and also by following the decision of ITAT, Hyderabad Bench, Hyderabad in the case of Raziulla Syed, Hyderabad vs., ITO [Int. TAXN]-2, Hyderabad (supra), we are of the considered view that the notice issued u/sec. 148 of the Act dated 27.07.2022 by obtaining prior approval from the Commissioner of Income Tax [International Taxation]-2, Mumbai dated 25.07.2022 is not in accordance with sec. 151(ii) of the Income Tax Act, 1961 as applicable from 01.04.2021 onwards. Therefore, we quash the notice issued u/sec. 148 of the Act dated 01.04.2021 and 27.07.2022 and consequent Final Assessment Order dated 13.03.2024 passed by the Assessing Officer u/sec. 147 r.w.s. 144C(13) of the Income Tax Act, 1961. Accordingly, the grounds raised by the assess....