SUMAN MITTAL,DELHI vs. ITO WARD 1, HISSAR

The appeal is time barred by 200 days. The assessee has filed an application supported by an affidavit citing reasons causing delay in filing of appeal. After perusal of the same, I am satisfied that delay in filing of appeal is not intentional, the delay has been caused for the reasons stated in petition which appears to be bonafide. Thus, delay of 200 days in filing of appeal is condoned and appeal is admitted for decision on merits.

The assessee has filed an application for admissions of additional ground of appeal challenging validity of notice u/s.148 of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’). The additional ground raised by the assessee is as under:-

Shri Gurjeet Singh, appearing on behalf of the assessee submits that in the instant appeal the assessment has been reopened beyond the period of three years, therefore, necessary approval u/s.151 of the Act for issuing notice u/s.148 of the Act has to be obtained from Principal Chief Commissioner or Chief Commissioner, whereas, in the present case the Assessing Officer (AO) has taken approval from PCIT. This fact clearly emanates from the order passed u/s. 148A(d) of the Act (at pages 4 to 6 of the paper book (of the Act as well as from the notice issued u/s.148 of the Act (at page 1 of the paper book).

Shri Manoj Kumar, representing the Department strongly supported the impugned order on merits.

Both sides heard, notices issued u/s.148, 148A(b) and order passed u/s.148A(d) of the Act placed in the paper book examined. The assessee has challenged validity of notice issued u/s.148 and u/s.148A(b) of the Act. As per provisions of section 151 of the Act (as were applicable when the aforesaid notices were issued), before issuing notices u/s.148 and u/s.148A of the Act, the AO was required to obtain necessary approval from PCCIT/CCIT, if, more than three years have elapsed from the end of relevant assessment year. In the instant case, assessment for AY 2016-17 was reopened by way of issuance of notice u/s.148A(b) of the Act dated 26.05.2022, which is clearly beyond period of three years. Therefore, the AO ought to have taken approval from PCCIT/CCIT. A perusal of order u/s.148A(d) of the Act dated 29.07.2022 as well as notice issued u/s.148 of the Act clearly shows that the statutory notice has been issued after obtaining prior approval of PCIT. This clearly shows that the notice has been issued in violation of provision of section 151 of the Act and the decision of Hon’ble Supreme Court of Indian rendered in the case of Union of India vs. Ashish Agarwal, 138 taxmaan.com 64. Since, the notice issued u/s.148 of the Act is without jurisdiction, the assessment proceedings emanating from such invalid notice are void-ab-initio, hence, quashed.