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Facts
The assessee appealed against an order passed by the Principal Commissioner of Income Tax (PCIT) under Section 263 of the Income Tax Act, 1961, for Assessment Year 2019-20. The PCIT revised the original assessment order, which was framed under Section 143(3) and approved under Section 153D, disallowing a deduction claimed by the assessee under Section 54F. The assessee contended that an assessment order passed with prior approval under Section 153D cannot be validly revised under Section 263.
Held
The Income Tax Appellate Tribunal (ITAT) held that an assessment order framed under Section 143(3) with prior approval of the Additional Commissioner of Income Tax under Section 153D cannot be validly revised by the PCIT under Section 263 of the Act. Relying on various High Court and Tribunal precedents, the ITAT concluded that the PCIT lacked jurisdiction to invoke Section 263 in such circumstances, particularly when the approval under Section 153D had attained finality and the PCIT did not demonstrate that the approval itself was vitiated or erroneous.
Key Issues
Whether an assessment order passed with prior approval under Section 153D can be subsequently revised by the Principal Commissioner of Income Tax under Section 263 of the Income Tax Act, 1961.
Sections Cited
263, 143(3), 153D, 54F, 153A
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Income Tax Appellate Tribunal, DELHI BENCH “A” NEW DELHI
Before: SHRI CHALLA NAGENDRA PRASAD & SHRI M BALAGANESH
सुनवाईक�तारीख/ Date of hearing: 04.06.2025 23.07.2025 उ�ोषणाक�तारीख/Pronouncement on आदेश /O R D E R PER C.N. PRASAD, J.M.
This appeal is filed by the Assessee against the order of the Ld. Pr. Commissioner of Income Tax (Central)-1, Delhi dated 21.03.2024 passed u/s 263 of the Act for the AY 2019-20. The assessee raised the following grounds: -
“1. That order dated 21.3.2024 u/s 263 of the Act by the learned Pr. Commissioner of Income Tax (Central), Delhi-1 has been made without satisfying the statutory preconditions contained in the Act and is therefore 1 without jurisdiction and thus, deserves to be quashed as such. 1.1 That the learned Pr. Commissioner of Income Tax has failed to appreciate that once the learned Assessing Officer on examination of the facts on record and after making all possible enquiries had accepted claim of the appellant then such an order of assessment could not be regarded as erroneous in as much as prejudicial to the interest of revenue merely because the learned Commissioner of Income Tax had a different opinion and that too, without having established in any manner that, view adopted by the learned Assessing Officer was an impossible or unsustainable view. 1.2 That the learned Principal Commissioner of Income Tax has failed to appreciate that action u/s 263 of the Act is otherwise too inapplicable on the factual matrix of the facts of the instant case since it is not a case of “lack of enquiry” or “lack of investigation” and therefore the invocation u/s 263 of the Act is not in accordance with law. 1.3 That the observation of the learned Principal Commissioner of Income Tax that clause (b) of Explanation 2 to section 263 of the Act is applicable on the facts of the appellant as admittedly the learned Assessing Officer has allowed the claim only after inquiry of the claim; and, in any case the allegation that the claim was allowed without proper enquiry is misconceived, misplaced and, otherwise too based on incorrect interpretation of Explanation 2(b) to section 263 of the Act. 1.4 That conclusion that “assessment order is held to be erroneous in so far as it is prejudicial to the interest of the revenue since the AO did not make any proper inquiry before allowing claim of the assessee u/s 54F of the I.T. Act” is otherwise too illegal, invalid and untenable. 1.5 That various judgments relied upon by the learned Principal Commissioner of Income Tax are wholly inapplicable to the facts of the case of the appellant.
2. That the learned Principal Commissioner of Income Tax has failed to appreciate that since order of assessment dated 12.5.2021 u/s 143(3) of the Act had been passed with approval u/s 153D of the Act, therefore the same could not be validly revised u/s 263 of the Act. 2.1 That since the learned Principal Commissioner of Income Tax has failed to appreciate that the order of assessment dated 12.5.2021 u/s 143(3) of the Act had been framed after due examination of claim of deduction u/s 54F of the Act and such claim has been accepted not only by the learned Assessing Officer but also by the learned Additional Commissioner of Income Tax in an approval u/s 153D of the Act. And, therefore the impugned order u/s 263 of the Act is void-ab-initio, more particularly when the approval granted u/s 153D of the Act stands accepted as such and has acquired finality.
3. That the learned Principal Commissioner of Income Tax has erred both in law and on facts in denying the claim of deduction of Rs.2,02,29,562/- u/s 54F of the Act. 3.1 That the learned Principal Commissioner of Income Tax has failed to appreciate that assessee has failed to explain why this tin shed should be considered as a residential house and the conclusion that the property purchased by the assessee had a tin shed over it at the time of purchase of the property and the same cannot be considered as a residential house as per provisions of section 54F of the I.T. Act is factually incorrect, legally misconceived and wholly untenable.
4. That furthermore the learned Principal Commissioner of Income Tax has proceeded to enhance the income by Rs.2,02,29,562/- and has directed the learned Assessing Officer to re-compute total income and issue of notice of demand is based on mere speculation, generalized observations, theoretical allegations and assertions, without there being any supporting evidence and is therefore not in accordance with law. 5. That even otherwise the finding that order of assessment is erroneous in as much prejudicial to the interest of revenue on the ground that “the property 3 purchased by the assessee had a tin shed over it at the time of purchase of the property and the same cannot be considered as a residential house as per provisions of section 54F of I.T. Act. Hence, deduction u/s 54F of Rs.2,02,29,562/- is hereby disallowed” is based on factually incorrect assumption, incorrect application to the provisions of law and therefore untenable.
6. That furthermore since the order of assessment dated 12.5.2021 u/s 143(3) of the Act was itself without jurisdiction therefore the impugned order made u/s 263 of the Act is also illegal, invalid and untenable.”
The Ld. Counsel for the assessee, at the outset, referring to ground nos. 2 & 2.1 of grounds of appeal submitted that since the assessment order dated 12.05.2021 passed u/s 143(3) of the Act had been passed with approval u/s 153D of the Act the same could not be validly revised u/s 263 of the Act. Ld. Counsel for the assessee submitted that since the Ld. PCIT has failed to appreciate that the assessment order passed u/s 143(3) of the Act had been framed after due examination of claim for deduction u/s 54F of the Act and such claim has been accepted not only by the Assessing Officer but also by the Ld. Addl. CIT in an approval u/s 153D of the Act, the impugned order passed by the Ld. PCIT u/s 263 of the Act is void ab initio, more particularly when the approval granted u/s 153D of the Act stands accepted as such and has attained finality. Reliance was placed on the following decisions in support of the above proposition:
PCIT vs. Prakhar Developers (P) Ltd. 162 taxmann.com 48 (Madhya Pradesh) (HC);
2. Devender Kumar Gupta vs. PCIT 166 taxmann.com 95 (Delhi- Trib.) ITAT;
3. M/s Tinna Trade Ltd. vs. ACIT dated 25.09.2024;
4. Smt. Abha Bansal vs. PCIT 132 taxmann.com 231 (Del. Trib.);
5. Shri Rama Shamker Khemka vs. PCIT (Del) dated 29.09.2023;
6. CIT vs. Dr. Ashok Kumar (Allahabad) dated 06.08.2012.
The Ld. DR strongly placed reliance on the orders of the authorities below.
Heard rival submissions, perused the orders of the authorities below and the case law relied on. In ground nos. 2 & 2.1 of grounds of appeal the assessee contends that since the assessment order u/s 143(3) was passed with the prior approval of Addl. CIT u/s 153D of the Act such assessment order could not have been validly revised u/s 263 of the Act by the PCIT. We find that this issue has been decided by various benches of the Tribunal following the decisions of various High Courts.
5. The Hon’ble Madhya Pradesh High Court in the case of PCIT vs. Prakhar Developers (P) Ltd. (supra) held as under: 5 “7. Learned counsel for the appellant failed to answer the query made by this Court whether order passed by the Pune Bench in the case of RAMAMOORTHY VASUDEVAN (SUPRA) was challenged before the High Court or Supreme Court on the issue of jurisdiction under section 263 of the Act. Learned counsel submits that she could not lay her hands any order / judgment passed by the High Court as well as by the Supreme Court on this issue. In the case of RAMAMOORTHY VASUDEVAN (SUPRA), in a similar facts and circumstances, reliance has been placed on judgments delivered by the Pune Bench of Tribunal in the case of DHARIWAL INDUSTRIES LTD. v. CIT [IT Appeal Nos. 1108 to 1113/PUN/2014], Lucknow Bench in the case of MEHTAB ALAM v. AC IT [IT Appeal Nos.288 to 294/Lkw/2014], Hyderabad Bench of the Tribunal in the case of CH. KRISHNA MURTHY v. ACIT [IT Appeal No.766/Hyd/2012] and one of the judgment passed by the High Court of Judicature at Allahabad in the case of CIT v. DR. ASHOK KUMAR [IT Appeal No. 192 of 2000] and Hyderabad Bench of Tribunal in the case of TRINITY INFRA VENTURES LTD. v. DCIT [IT Appeal No.584/H/2015] and consistently held that once the order under Section 143(3) r/w section 153A of the Act has been passed after taking prior approval of the AClT under section 153D of the Act, then the jurisdiction under section 263 of the Act cannot be invoked. Therefore, the view taken by the Co-ordinate Bench of the Appellate Tribunal had attained finality. Hence, the ITAT, Indore has not committed any error of law by following the same view.
8. Even otherwise, as per section 263 of the Act, the Principal Chief Commissioner or Principal Commissioner or Commissioner may call for and examine the record of any proceeding under this Act and if he considers that any order passed therein by the Assessing Officer, is erroneous in so far as it is prejudical to the interests of the Revenue, he may make enquiry as he deems necessary, pass such order thereon as the circumstances of the case justify. For passing any order under sections 143(3) & 153A of the Act, prior approval of Joint Commissioner is required under section 153A of the Act, 6
or Principal Commissioner or Commissioner as the case may be. Therefore, once prior approval had already been taken by the Assessing Officer and accepted the return submitted by the assessee, then the same authority cannot exercise the power under Section 263 of the Act to reverse the order of Assessing Officer.”
6. The Hon’ble Allahabad High Court in the case of CIT vs. Dr. held as under: - “3. These appeals were admitted on the question of law, which we have corrected as follows:- "Whether on the facts and in the circumstances of the case, the Tribunal was justified in interfering with the order of the Commissioner of Income Tax, Under Section 263 of the Income Tax Act 1961 for the assessment years 1991-92 to assessment years 1995-96?"
4. We have gone through the order of Assessing Officer, Commissioner Income Tax (A) and Income Tax Appellate Tribunal and find that the ITAT has considered the reasons given by the CIT(A), and has found that the assessee had sufficiently explained the surrender of the income which he has subsequently retracted.
After assessments were completed, a raid was carried out, at the Nursing Home of the respondent- assessee on 7.12.2004. Some incriminating documents of concealment of income, were discovered. The assessee was not present at the time of inspection. He appeared before the AO on 12.12.1994 and surrendered the proposed additions in the income for the relevant years. The respondent-assessee thereafter retracted his statement, by giving an explanation that he did not have access to his accounts books, when he had appeared on his own before the AO on 12.12.1994. On checking up the account books, he had found that the returns were accepted, on the accounts books prepared by him.
The Tribunal thereafter has observed as under:- "5.1 The other relevant point to be noted is that CIT set aside the assessment order on the basis of incorrect reasons. As pointed out by the learned counsel, there was no material found during search about suppression of receipts for a.y. 1991- 92 to 1994-95 nor the learned D.R. Was able to point out any such material which might have been ignored by the AO while framing the assessment and thus the vary basis for passing the impugned order goes away. The CIT also failed to point out as to why the AO failed to work out the amount of concealed income correctly, rather the AO had made the additions on estimate basis for all the assessment years though there was no seized material indicating suppression of receipts for these assessment years and for A.Y. 1995-96 the material found at the time of search had been analysed after necessary enquiries and assessment had been framed accordingly. 5.2 In the last it is also relevant fact that the AO was fully alive about, the facts of the case and that is why he got necessary approval of Addl. Commissioner before completing the assessment orders for all the assessment years and once that is not disputed by the Revenue than the CIT would not be justified in interfering in the approval accorded by the Addl. CIT for framing the assessment order and thus there was no case for setting aside the assessment orders for the assessment years in question. On the basis of facts and circumstances of the case I am of the opinion that the impugned order is liable to be quashed accordingly. б. In the result, appeals are allowed."
7. Sri R.K. Upadhyay had relied upon Malabar Industrial Co. Ltd. Vs. Commissioner of Income Tax, 8 (2000) 243 ITR 83 and Commissioner of Income Tax Vs. Kwality Twxtile Associate Pvt. Ltd., (2005) 272 ITR 371. In these cases the Supreme .Court and the Madras High Court have discussed the powers of CIT under Section 263 of the Act, to remand the matter. If the twin conditions namely that the order of AO sought to be revised is erroneous, and it also prejudicial to the interest of the revenue are satisfied the CIT can remand the matter to the file of A.O.
We find that the Tribunal has considered the relevant principles of law in interfering with the order of CIT. The Tribunal found that the assessee-respondent had sufficiently explained the retraction of his statement given on 12.12.1994. It also found that the CIT could not point out as to whether the AO had failed to work out the amount of concealed income correctly. The AO had made additions on estimate basis for all the assessment years. There was no material indicating suppression of receipts.
9. We find that the Tribunal has not committed any error of law in setting aside the order of CIT passed under Section 263 of Income Tax Act for the assessment year 1991-92 to 1995-96.”
7. The coordinate bench of Delhi Tribunal in the case of Devender Kumar Gupta vs. PCIT examined the validity of the order passed by the ACIT u/s 263 of the Act when an assessment order u/s 153A was passed after prior approval of the JCIT and the Tribunal held as under: -
“5. Further, the Id. AR has submitted that in regard to the assessment orders under consideration for the four years, the assessment orders were passed u/s 153A of the Act after approval of Addl. CIT u/s 153D dated 24.09.2021. It was submitted by the ld. AR that an order which has been subject of approval u/s 153D of the Act cannot be subject to revision u/s 263 of the Act and for that the ld. AR has relied the following judicial pronouncements:- (i) Pr. CIT v. Prakhar Developers (P.) Ltd. [2024] 162 taxmann.com 48/299 Taxman 252 (Madhya Pradesh); (ii) Smt. Abha Bansal v. Pr. CIT [2021] 132 taxmann.com 231 (Delhi - Trib.); (iii) Gyan Infrabuild (P.) Ltd. v. Pr. CIT [2024] 162 taxmann.com 664 (Patna - Trib.); (iv) BU Bhandari Schemes v. Pr. CIT [IT Appeal Nos. 637 to 641 (Pune) of 2018, dated 14-11-2018]; (v) Vishwa Infraways (P) Ltd. v. CIT (Central) [IT Appeal Nos. 596,597 & 599 (Pune) of 2015]; (vi) Rasi Kalal M. Dhariwal (HUF) v. CIT [IT Appeal Nos. 1102 to 1107 (Pune) of 2014]; (vii) Ramamoorthy Vasudevan vs. PCIT [IT Appeal Nos. 967 & 968 (Pune) of 2016]; (viii) Dhariwal Industries Ltd. v. CIT [IT Appeal Nos. 1108 to 1113 (Pune) of 2014, dated 23-12-2016]; (ix) Smt. Nama Chinnamma vs. Dy.CIT [IT Appeal Nos. 1150-1157 (Hyd.) of 2015, dated 9-8-2017]; (x) Trinity Infraventures Ltd. v. Dy. CIT [IT Appeal Nos. 584-589 (Hyd.) of 2015, dated 4-12-2015]; (xi) S. Satyanarayana v. Syed Rasiuddin [IT Appeal No. 901 (Hyd.) of 2014]; (xii) Mehtab Alam v. Dy. CIT [IT Appeal No. 288 (Luck.) of 2014, dated 18-11- 2014]; (xiii) Dharmendra Kumar Bansal v. CIT [2014] 48 taxmann.com 53/152 ITD 406 (Jaipur – Trib.); & (xiv) CIT v. Dr. Ashok Kumar, Proprietor, S.S. Nursing Home [IT Appeal No. 192 of 2000, dated 6- 8-2012] 6. This is countered by the Ld. DR by relying the order of Nagpur Bench of this Tribunal in Shrigopal Rameshkumar Sales (P.) Ltd. v. Assistant Commissioner of Income-tax [2022] 140 taxmann.com 628/196 ITD 107 (Nagpur - Trib.)/ITA No.162/Nag/2018 order dated 01.04.2022.
We have given thoughtful consideration to this aspect of the controversy and we find that a specific ground No.2 is raised by the assessee as follows: “2. That the assessment order passed u/s 153A r.w.s. 143(3) after getting an approval of Addl. Commissioner U/s 153D could not be revised u/s 263, hence Ld. PCIT exceeded his jurisdictional in invoking sec. 263 in respect of impugned asstt. order framed u/s 153A r.w.s. 153D.”
8. The assessment orders made it categorical that the same are passed with statutory approval of Addl. Commissioner of Income Tax, Central Range, Gurgaon communicated vide his office letter F.No. Addl.CIT(CR)/GGM/2021-22/664 dated 24.09.2021 in accordance with section 153D of the Income Tax Act.
We find that in the impugned order the Ld. PCIT has not taken account of the fact that the assessments were completed after prior approval of the competent authority. Thus, we are of the considered view that at the time of examining the issue as to if the assessment order is erroneous so far as prejudicial to the interest of the Revenue, the Ld. Revisional Authority is not only supposed to see the assessment record of AO, but also the record of the approval which as far as the revisional authority is concerned becomes “record” of the quasi judicial authority whose order is being examined by invoking the revisional jurisdictional. Therefore, without giving a finding that the prior approval u/s 153D was vitiated and was also erroneous so far as prejudicial to the interest of the Revenue, the assessment order 11 independently cannot be held to be erroneous so far as prejudicial to the interest of the Revenue. 9.1 The catena of judicial pronouncements relied by the Ld. AR have also laid down the same proposition of law and we will like to refer specifically to the judgment of the Hon’ble Madras High Court in the case of Prakhar Developers (P) Ltd. (supra) where the Hon’ble Madras High Court has taken into consideration the fact that the Pune Bench order in the case of Ramamoorthy Vasudevan (supra) wherein it was held that the order passed by the PCIT is unsustainable due to lack of jurisdiction in invoking section 263 of the Act for the reason that the same was passed upon taking prior approval u/s 153A of the Act, was not challenged by the Department before the Hon’ble High Court or the Hon’ble Supreme Court and, thus, the Hon’ble Madras High Court in its judgment dated 01.04.2024 has held as follows: “8. Even otherwise, as per section 263 of the Act, the Principal Chief Commissioner or Principal Commissioner or Commissioner may call for and examine the record of any proceeding under this Act and if he considers that any order passed therein by the Assessing Officer, is erroneous in so far as it is prejudicial to the interests of the Revenue, he may make enquiry as he deems necessary, pass such order thereon as the circumstances of the case justify. For passing any order u/s 143(3) & 153A of the Act, prior approval of Joint Commissioner is required u/s 153A of the Act, or Principal Commissioner or Commissioner as the case may be. Therefore, once prior approval had already been taken by the Assessing Officer and accepted the return submitted by the assessee, then the same authority cannot exercise the power u/s 263 of the Act to reverse the order of Assessing Officer.”
10. The judgment which the Ld. DR has relied is not applicable as in that judgment, this aspect was not actually examined at all and only for the reason that there also the impugned assessment order was passed u/s 153A of the Act, does not lay down a view contrary to the one we are relying above.
In the light of the aforesaid discussion, we are inclined to allow grounds No.2 & 3 for AYs 2015-16 and 2016-17; and ground no.3 in AYs 2017-18 and 2018-19. Consequently, the appeals are allowed and the impugned orders in respective years are quashed.”
8. Similarly in the case of M/s Tinna Trade Ltd. vs. ACIT the Delhi Bench of the Tribunal in dated 25.09.2024 held as under: -
“g. Further, we find that the search assessment proceedings u/s 143(3) read with section 153C of the Act was framed on 26.03.2013 by Id DCIT, Central Circle, New Delhi after obtaining prior approval u/s 153D of the Act from Additional Commissioner of Income Tax, Central Range-2, New Delhi. On perusal of the order of the Id PCIT u/s 263 of the Act, we find nowhere in his order, the Id PCIT even whispers about the approval granted by the Additional CIT u/s 153D of the Act to be erroneous and prejudicial to the interest of the revenue. Without doing so, the Id PCIT could not assume revision jurisdiction u/s 263 of the Act. Reliance in this regard is placed on the decision of the Hon'ble Madhya Pradesh High Court in the case of PCIT V. Prakhar Developers Pvt. Ltd reported in 299 taxman 252 (MP). The very same view was also taken by the coordinate bench of this tribunal in the case of Devender Kumar Gupta V. PCIT reported in 166 taxmann.com 95 (Delhi Tribunal) vide order dated 30.08.2024. The relevant operative portion of the said tribunal order is reproduced herein below:- "9. We find that in the impugned order the Id. PCIT has not taken account of the fact that the assessments were completed after prior approval of the competent authority. Thus, we are of the considered view that at the time of examining the issue as to if the assessment order is erroneous so far as prejudicial to the interest of the Revenue, the Id. revisional authority is not only supposed to see the assessment record of AO, but also the record of the approval which as far as the revisional authority is concerned becomes "record" of the quasi judicial authority whose order is being examined by invoking the revisional jurisdiction. Therefore, without giving a finding that the prior approval u/s 153D was vitiated and was also erroneous so far as prejudicial to the interest of the Revenue, the assessment order independently cannot be held to be erroneous so far as prejudicial to the interest of the Revenue."
8. In view of the aforesaid decision the revision jurisdiction assumed by the PCIT u/s 263 of the Act fails on this count also.”
9. The ratios of the above decisions squarely applies to the facts of the assessee’s case since in the case on hand the assessment u/s 143(3) of the Act was completed on 12.05.2021 by the Assessing Officer with the prior approval u/s 153D of the Act of the Addl.
Commissioner of Income Tax. Therefore, since the assessment was completed with the prior approval of Addl. CIT u/s 153D of the Act, the Ld. PCIT could not have revised the assessment order invoking the revisionary powers u/s 263 of the Act. Thus, respectfully following the above decisions, we quash the order passed by the Ld. PCIT u/s 263 of the Act for the AY 2019-20 by allowing ground nos. 2 & 2.1 of the grounds of appeal. Since we have quashed the order passed u/s 263 on a legal point, all other grounds raised by the 14 assessee are not adjudicated as the same would become academic in nature at this stage.
In the result, appeal of the assessee is allowed.
Order pronounced in the open court on 23.07.2025