HASMUKHBHAI BABULAL PATEL,AHMEDABAD vs. ITO - WARD 3(3)(1), AHMEDABAD

There was delay of 2 days in filing of this appeal. It was explained by the Ld. AR that the delay was due to mistake in computation of limitation period. Considering the explanation of the assessee, the delay in filing of this appeal is condoned.

The brief facts of the case are that the assessee did not file his return of income for A.Y. 2015-16. The Assessing Officer (hereinafter referred as the ‘AO’) had received an information that the assessee had sold an immovable property for a consideration of Rs. 62,00,000/- during the year and the capital gain arisen on the sale thereof was not offered to tax. Therefore, the AO had reopened the case u/s. 147 of the Act by issue of notice u/s. 148 on 21.03.2022. The assessment was completed u/s. 147 r.w.s. 144B of the Act on 15.03.2023 at total income of Rs. 62,00,000/-.

Aggrieved with the order passed of the AO, the assessee had filed an appeal before the first appellate authority, which was decided by the Ld. CIT(A) vide the impugned order and the appeal of the assessee was dismissed. Th

Now the assessee is in second appeal before us. The following grounds have been taken in this appeal:

Shri Vishnubhai Patel, the Ld. AR of the assessee submitted that the Ld. CIT(A) had dismissed the appeal of the assessee on ground of delay without adjudicating the grounds taken by the assessee on merits. The Ld. AR submitted that the reopening done in this case was bad in law as notice u/s. 148 of the Act was barred by limitation. He has drawn our attention to the judgement of Hon’ble Supreme Court in the case of Deepak Steel and Power Limited vs. CBDT, 174 taxmann.com 144 (SC) wherein it was held that for the A.Y. 2015-16 all notices issued on or after 01.04.2021 would have to be dropped as they would not fall for completion during period prescribed under TOLA. Reliance was also placed on the decision of Hon’ble Gujarat High Court in the case of Narendra Maganlal Purohit & Others vs. DCIT, (182 taxmann.com 786) (Gujarat).

Per Contra Shri Deependra Kumar, the Ld. SR-DR submitted that the assessee did not make any compliance before the AO. He supported the action of the Assessing Officer.

We have considered the submissions of the assessee and perused the materials on record. The assessee has contended that reopening proceeding for A.Y. 2015-16 was barred by limitation and the jurisdiction assumed by the Assessing Officer was contrary in law in the light of binding decision of Hon’ble Supreme Court in the cases of Union of India vs. Rajeev Bansal, (167 taxamann.com 70) (SC) and Deepak Steel and Power Limited (supra) as well as the judgement of Jurisdictional Gujarat High Court in the case of Narendra Maganlal Purohit & Others (supra). There is no dispute in the fact that the notice under Section 148 of the Act for A.Y. 2015-16 was issued in this case on 31.03.2022. The Hon’ble Supreme Court in the case of Deepak Steel and Power Limited (supra) while deciding on the issue of notice under Section 148 of the Act for the A.Y. 2015-16 has held as under:

In the present case, the notice u/s 148 of the Act for A.Y. 2015-16 was issued on 31.03.2022 i.e. after 01.04.2021. In view of the binding position of law as held by the Hon’ble Supreme Court as well as the Jurisdictional High Court discussed above, the said notice is time-barred and without jurisdiction. Consequently, the assessment order passed u/s 147 of the Act dated 15.03.2023 on the foundation of invalid notice cannot survive. Accordingly, the assessment order passed u/s 147 read with Section 144B of the Act dated 15.03.2023 is quashed. The ground taken by the assessee is allowed.

Since the appeal of the assessee is allowed on the ground of jurisdiction, the other grounds as taken in this appeal have become infructuous.

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