GANESH COMPLEX PRIVATE LIMITED,RAJKOT vs. INCOME TAX OFFICER - WARD 6(2) / KOLKATA, KOLKATA

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ITA 2907/KOL/2025Status: DisposedITAT Kolkata03 September 2026AY 2012-1310 pages

In favour of the assessee: the assessee's appeal was allowed. From the AI summary of this appeal.

AI SummaryAllowed

What did the Tribunal hold?

The tribunal held that the notice under Section 148 was issued prior to the approval granted by the Principal Commissioner of Income Tax (PCIT), making it invalid. Consequently, the reassessment proceedings and the assessment order were quashed.

What were the facts?

The assessee's appeal was filed with a delay of 215 days, which was condoned by the tribunal. An additional ground was raised challenging the validity of the notice issued under Section 148 of the Income Tax Act, 1961.

What were the issues?

Whether a notice issued under Section 148 is valid if it is issued before obtaining the necessary approval from the PCIT as required under Section 151.

Which sections of the Income-tax Act were involved?

Section 148,Section 151,Section 147,Section 144

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, “B” BENCH, KOLKATA

For Appellant: Shri Abhishek Bansal, AR
For Respondent: Shri Ambrish Mishra, DR
Hearing: 18.08.2026Pronounced: 03.09.2026

Per Rajesh Kumar, AM:

This is an appeal preferred by the assessee against the order of the National Faceless Appeal Centre, Delhi (hereinafter referred to as the “Ld. CIT(A)”] dated 10.02.2025 for the AY 2012-13.

2.

At the outset, we note that the appeal of the assessee is barred by limitation by 215 days. At the time of hearing the counsel of the assessee explained the reasons for delay in filing the appeal which appear to cogent and plausible. The Ld. D.R raised a strong objection in condoning the delay. After hearing the rival contentions and perusing the materials available on record, we find that the delay is for bonafide and

genuine reasons and hence, we condone the delay and adjudicate the appeal as under.

3.

The assessee has raised additional ground vide letter dated 30.04.2026, which is extracted below:-

“3. For that the notice u/s 148 dated 29.03.2019, being issued before approval granted by ld. PCIT-2, Kolkata is bad in law.” 3.1. After hearing the rival contentions and perusing the material on record, we find that the assessee has raised the above additional ground of appeal challenging the jurisdiction of the AO to issue notice u/s 148 of the Act even prior to communication of approval u/s 151 of the Act. In our opinion the issued raised in the additional ground is a purely a legal issue qua which all the facts are available in the appeal folder and no further verification of facts is required from any quarter whatsoever. In our considered view the assessee is at liberty to raise any legal issue before any appellate authority for the first time even when the same has not been raised before the lower authorities. The case of the assessee is squarely covered by the decisions of the Apex court in the case of i) Jute Corporation of India Ltd. Vs CIT in 187 ITR 688 , ii) National Thermal Power Co. Ltd v. CIT [1998] 229 ITR 383 and also by the decision of Hon’ble Calcutta High Court in PCIT vs. Britannia Industries Ltd. [2017] 396 ITR 677 (Cal). Therefore, we are inclined to admit the same for adjudication.

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4. The ld. Counsel for the assessee at the outset submitted that the notice issued by the ld. AO u/s 148 of the Income-tax Act, 1961 (the Act) dated 29.03.2019, is nullity and bad in law, as the same has been issued even prior to the approval granted by the ld. PCIT-2, Kolkata. The ld. AR submitted that the consequential assessment framed by the ld. AO u/s 147/ 144 of the Act dated 15.12.2019, is also bad in law and may kindly be quashed. In defense of his arguments the ld. AR relied on the decision of Hon'ble Apex Court in the case of Sethi Auto Service Station and Anr. Vs. Delhi Development Authority and Ors. 2008 (10) TMI 659 (SC) and also the coordinate bench in the case of Paras Plaza Pvt Ltd. Vs ITO ITA No. 2676/Kol/2024 A.Y. 2012-12 order dated 3.1.2015 wherein the above decision of the Hon'ble Apex Court has been followed.

5.

The ld. DR on the other hand relied on the orders of the ld. lower authorities by submitting that this is an internal procedure and methodology of the Department to communicate the approval in advance or through special messengers while the approval in physical mode amy take some time. Therefore, approval granted/communicated by the ld. PCIT even after the issuance of date of notice u/s 148 of the Act would not vitiate the validity as well as the assessment framed by the ld. Assessing Officer. Therefore the additional ground raised by the assessee may kindly be dismissed.

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6. After hearing the rival contentions and perusing the materials available on record, we find that undisputedly notice u/s 148 of the Act was issued by ITO Ward 6(2), Kolkata on 29.03.2019, a copy of which is available at page no. 22 of the Paper Book. For the sake of ready reference the same is extracted below:-

“

”

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7. From the perusal of the approval granted by the ld. PCIT-2, Kolkata, a copy of which is available at page no. 17 and 18 of the paper book , we note that the same was accorded on 30.3.2019. For ready reference , the same is extracted below:-

8.

We note that the approval was granted by the ld. PCIT on 30.03.2019, meaning thereby that the notice u/s 148 of the Act has been issued even prior to the sanction/ approval granted by the ld. PCIT-2, Kolkata. In our opinion, the notice issued u/s 148 of the Act even prior to the approval granted by the ld. PCIT is invalid as the same is against the scheme and safeguars provided under the Act in order to safe guard the interest of the assessee against any wrong and invalid reopening of assessment. In other words, the ld. PCIT is supposed to apply his mind and record his satisfaction to the reasons placed before him by the ld. AO and only then accord his approval based on his satisfaction and not otherwise. Therefore, the notice issued is invalid and so is the consequent assessment framed by the ld. Assessing Officer. The case of the assessee is also covered by the decision of the co-ordinate bench decision in case of Paras Plaza Pvt. Ltd. Vs. ITO in ITA No. 2676/KOL/2024, vide order dated 03.11.2025. The case of the assessee is also squarely covered by the decision of Hon'ble Apex Court in the case of Sethi Auto Service Station and Anr. Vs. Delhi Development Authority and Ors. 2008 (10) TMI 659 (SC), wherein the Supreme Court has held as under: -

“12. It is trite to state that notings in a departmental file do not have the sanction of law to be an effective order. A noting by an officer is an expression of his viewpoint on the subject. It is no more than an opinion by an officer for internal use and consideration of the other officials of the department and for the benefit of the final decision-making authority. Needless to add that internal notings are not meant for outside exposure. Notings in the file culminate into an executable order, affecting the rights of the parties, only when it reaches the final decision-making authority in the department; gets his approval and the final order is communicated to the person concerned. 13. In Bachhittar Singh Vs. The State of Punjab3, a Constitution Bench of this Court had the occasion to consider the effect of an order passed by a Minister on a file, which order was not communicated to the person concerned. Referring to the Article 166(1) of the Constitution, the Court held that order of the Minister could not amount to an order by the State Government unless it was expressed in the name of the Rajpramukh, as required by the said Article and was then communicated to the party concerned. The court observed that business of State is a complicated one and has necessarily to be conducted through the agency of a large number of officials and authorities. Before an action is taken by the authority concerned in the name of the Rajpramukh, which formality is a constitutional necessity, nothing done would amount to an order creating rights or casting liabilities to third parties. It is possible, observed the Court, that after expressing one [1962] Supp 3 SCR 713 opinion about a particular matter at a particular stage a Minister or the Council of Ministers may express quite a different opinion which may be opposed to the earlier opinion. In such cases, which of the two opinions can Page 8 of 10

be regarded as the "order" of the State Government? It was held that opinion becomes a decision of the Government only when it is communicated to the person concerned. 14. To the like effect are the observations of this Court in Laxminarayan R. Bhattad & Ors. Vs. State of Maharashtra & Anr.4, wherein it was said that a right created under an order of a statutory authority must be communicated to the person concerned so as to confer an enforceable right.” 9. Respectfully following the above decision and considering the facts and circumcisions of the case, we are inclined to quash the re-opening of assessment as well as the consequent assessment order. The additional ground raised by the assessee is allowed.

10.

In the result, the appeal of the assessee is allowed.

Order pronounced on 03.09.2026.

Sd/- Sd/- (PRADIP KUMAR CHOUBEY) (RAJESH KUMAR) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) Kolkata, Dated: 03.09.2026 Sudip Sarkar, Sr.PS Copy of the Order forwarded to: 1. The Appellant 2. The Respondent 3. CIT DR, ITAT, 4. 5. Guard file. BY ORDER, True Copy//

(Manish Bhoi) Dy. Registrar Income Tax Appellate Tribunal, Kolkata

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