DHANAJI ABASAHEB DHAGE,MUMBAI vs. ITO WARD 41(2)(1), MUMBAI

आदेश / ORDER

PER SANDEEP GOSAIN, JUDICIAL MEMBER: This appeal is filed by the Assessee against the order of Ld. NFAC dated 23-Oct-2025 for the Assessment Year 2017-18.

The Assessee has raised the following grounds of appeal:

The assessee submits the following grounds:

The Hon'ble Members,

To, SMC' Bench,

The Income Tax Appellate Tribunal, Mumbai.

Sub: Application for admitting additional Grounds of Appeal Ref: Appeal of Dhanaji Abasaheb Dhage Assessment Year: 2017-18 PAN: AJBPD1910C Appeal No. ITA No. 7663/Mum/2025 Respected Sir,

With reference to the appeal filed before Your Honours, I am submitting this application with a sincere request to admit the additional grounds of appeal as enclosed herewith.

The four additional grounds raised hereunder before Your Honours are legal grounds and the same were not raised before the CIT(A)/NFAC.

It is submitted before Your Honours that Additional Grounds No. 1 and 2 have been raised pursuant to the decision of the Hon'ble Supreme Court in the case of Union of India vs. Rajeev Bansal [2024] 167 taxmann.com 70 (SC) dated 03-10- 2024. The appeal in the case of the assessee was filed before the Ld. CIT(A)/NFAC on 09-08-2023 and at that point in the time the decision of Hon'ble Supreme Courts was not delivered then.

Additional Grounds No. 3 and 4 have been raised pursuant to the decision of the Hon'ble Bombay High Court in the case of Hexaware Technologies Ltd. vs. Asst. CIT [2024] 162 taxmann.com 225 (Bombay) dated 03-05-2024. Once again, the decision of the Hon'ble Bombay High Court was not delivered at the time when the appeal was filed by the assessee before the Ld. CIT(A)/NFAC.

During the course the First Appellate Proceeding, the assessee was not properly advised by the professional on these legal issues and therefore, the same were not raised then. However, when the assessee approached another professional to represent him before the Hon'ble Tribunal, it was at that point in time when he was advised that there are legal issues which were covered by the decisions of Hon'ble Supreme Court and Hon'ble Bombay High Court. Consequently, the same are being raised as additional grounds before Your Honours which are legal in nature.

Reliance is placed on the decision of the Hon'ble Bombay High Court in Ventura Textiles Ltd. vs. CIT ITA No. 958 of 2017 wherein the Hon'ble High Court has held that a jurisdictional issue, though not raised before the Tribunal can be raised before the High Court for the first time and adjudicated upon. (Copy of the said order is attached)

Reliance is also placed on the decision of All Cargo Global Logistics Ltd. vs. Dy. CIT [2012] 21 taxmann.com 429 (Mum.) (SB) wherein the Hon'ble Mumbai Tribunal relying on the decision of Hon'ble Supreme Court in the case of National Thermal Power Co. Ltd. v. CIT [1998] 229 ITR 383 (SC) has held as under:

This brings us to the question whether this ground can be taken up as additional ground with the leave of the Tribunal. To our mind, the answer to the question is obvious in view of the decision in the case of National Thermal Power Co. Ltd. (supra) decided on 12.4.1996, after the decision was rendered in the case of Begum Noor Banu Alladin (supra) on 21.4.1993. The Hon'ble Supreme Court has held with the view that Tribunal is confined only to issues arising out of the appeal before the CIT(A) takes too narrow a view. This view was taken in the case of Anand Prasad, Karamchand

Premchand (P.) Ltd's. cases (supra) and Cellulose Products of India Ltd. This means that the ratio of these cases has not found favour with the apex court. The decision in the case of Begum Noor Banu Alladin (supra) heavily relies on the decision in the case of Karamchand Premchand (P.) Ltd. and Cellulose Products of India Ltd.'s cases (supra) If these cases have not been approved by the Apex Court, it follows that the decision based on these cases may not be followed by us. Further the Hon'ble Apex Court in very clear terms has held that the Tribunal will have discretion to allow or not to allow a new ground to be raised, but where the Tribunal is only required to consider a question of law arising from the facts which are on record in the assessment proceedings, it fails to see why such a question should not be allowed to be raised when it is necessary to consider that question in order to correctly assessee the tax liability of an assessee. The position of the assessee in the case at hand is similar to the position of NTPC, as both of them are appellants. Therefore, on the basis of the decision, it abundantly clear that if the pure question of law arises for which facts are on record of the authorities below, such a question should be allowed to be raised, if it is necessary to do so to assess the correct tax liability.

Further, the Hon'ble Tribunal had also taken into consideration that the assessee in the said case was not advised properly before the lower authorities and accordingly, it held as under:

The Ld. Counsel has submitted that this ground could not be raised earlier as the assessee was not properly advised in the proceedings before the lower authorities, and it did not have the services of an advocate at his command. On perusal of record, this submission is found to be correct. The question is one of law and not one of fact. Therefore, it could be that a proper ground could not be raised in absence of services of an advocate although the denial of the deduction had been disputed. This constitutes a reasonable cause in the light of the decision in the case of Shaik Ibrahim (supra). Thus, we find that there are reasons to hold that the assessee could not take up this ground before lower authorities for bona-fide reasons.

In view of the stated position, stated by the Ld. Counsel, that all facts are on record, we admit ground No. 1 in the memorandum of appeal for decision as an additional ground. It also follows from the decision that no fresh fact will be entertained or examined while deciding the ground.

In light of the above, the assessee prays Your Honours to admit the four additional grounds which are legal in nature.

Thanking You,

Additional Grounds of Appeal

3.1 On the other hand, the ld. DR contested the said application and requested dismissal of the same.

5.1 On the other hand, the ld. DR submitted that the notice in question was timely issued and was not time-barred.

6.1 Therefore, after considering the details as contained hereinabove, we find that the notice issued under Section 148 of the Act on 11.07.2022 was time-barred, as the same was issued much after the surviving period. In this regard, reliance is placed upon the decision in the case of Hitesh Ramniklal Shah vs. ACIT (2025) 180 taxmann.com 642, wherein it has been stated:

Section 149, read with section 148A, of the Income-tax Act, 1961 and section 3 of the Taxation and Other Laws (Relaxation and Amendments of Certain Provisions) Act, 2020 Income Escaping Assessment - Time limit for issuance of notice (Surviving period) - Assessment year 2014-15 Assessing Officer issued a notice under unamended section 148 on 29-6-2021- Thereafter, Assessing Officer issued a show cause notice under section 148A(b) on 25-5-2022-Pursuant to show cause notice, assessee filed replies on 3-6-2022, 17-6-2022 and 25-6-2022-Assessing Officer passed an order under section 148A(d) on 26-7-2022 and issued a fresh notice under section 148 on 27-7-2022 Revenue contended that a period of ten years was available to issue notice under section 148-It was noted that in case similar to assessee, High Court held that timeline under section 148A(d) was for Assessing Officer to comply with stipulations and section 148A(d) would not extend time limit under section 149(1) nor would have a bearing on time under section 149(1) - Whether a notice under section 148 could not be issued if period of six years from end of relevant assessment year had expired at time of issuance of notice relying on first proviso to section 149 Held, yes Whether thus, after considering exclusion period, remaining days for conclusion of procedure for passing of an order in terms of section 148A(d) and issuance of notice under section 148 would be two days -Held, yes Whether since period of two days would expire on 10-6-2022 or 27-6- 2022 respectively, notice under section 148 issued on 27-7-2022 was time barred, inasmuch as it was issued much after surviving period - Held, yes [Paras 24 and 26] [In favour of assessee]

Section 151, read with sections 148A and 148, of the Income-tax Act, 1961- Income escaping assessment Sanction for issue of notice (Specified authority) Assessment year 2017-18-Whether non-compliance by Assessing Officer with provisions contained in section 148A(d) read with section 151(ii) vitiates their jurisdiction to issue a notice under section 148 - Held, yes Whether in view of above, where order under section 148A(d) dated 18- 08-2022 and consequential notice under section 148 dated 23-8-2022 were issued after three years from end of Assessment Year 2017-18, however, approval was obtained from Principal Commissioner under section 151(i) and not from specified authority as required under section 151(ii), said order under section 148A(d) and notice under section 148 were to be quashed - Held, yes [Paras 10, 12 and 13] [In favour of assessee]

Order pronounced in the open court on 05.05.2026.

Sd/- Sd/- PRABHASH SHANKAR SANDEEP GOSAIN ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai Dated:

Copy to: DHANAJI ABASAHEB DHAGE, ROOM NO. 4 ANANDI KADAM CHAWL J.M ROAD, BEHIND VIMAL MEDICAL 1 BHANDUP (W) MUMBAI, MUMBAI-400078, MAHARASHTRA ITO WARD 41(2)(1), KAUTILYA BHAVAN, C41 TO C43 AVENUE 3 2 NEAR VIDESH BHAVAN, G BLOCK GIBAN AREA BANDRA KURLA COMPLEX BANDRA EAST, MUMBAI-400051, MAHARASHTRA 3 THE PCIT / CIT, 4 THE D.R., ITAT, MUMBAI BENCH 5 GUARD FILE