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Facts
The assessee, a non-resident, purchased a commercial property in Hyderabad, but did not file a return of income for the relevant assessment years. A search and seizure operation revealed the transaction, leading the Assessing Officer to reopen assessments for AY 2016-17 and 2017-18. Additions were made for unexplained money under Section 69A and disallowances for exempt income under Section 10(34) and Section 80C deductions, due to the assessee's failure to provide supporting documentation. The Disputes Resolution Panel upheld these additions.
Held
The Tribunal ruled that the reassessment notices issued under Section 148 of the Income Tax Act, 1961, beyond three years from the end of the relevant assessment year, were invalid. This was because the approval for reopening was obtained from a Commissioner of Income Tax, which, as per the amended Section 151(ii) effective from 01.04.2021, should have been from the Principal Chief Commissioner or Principal Director General. Citing Supreme Court and High Court precedents, the Tribunal declared the reassessment notices and the consequential final assessment orders as void ab initio.
Key Issues
Whether the reassessment proceedings initiated under Section 147/148 were valid, specifically concerning the requirement for approval from the correct 'Specified Authority' under Section 151(ii) of the Income Tax Act for reopenings beyond three years after 01.04.2021.
Sections Cited
10(34), 69A, 80C, 132, 142(1), 144C(1), 144C(5), 144C(13), 147, 148, 148A, 148A(d), 149, 151, 151(ii)
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Income Tax Appellate Tribunal, HYDERABAD “A” BENCH: HYDERABAD
Before: SHRI VIJAY PAL RAO & SHRI MANJUNATHA G
ORDER PER MANJUNATHA G : These twin appeals are filed by the Assessee against the Final Assessment Order both dated 13.03.2024 passed by the Income Tax Officer [Int. Taxn]-1, Hyderabad, passed u/sec.147 r.w.s.144C(13) of the Income Tax Act, 1961, in pursuance to the Directions both dated 29.02.2024 passed by the Disputes Resolution Panel-1, [in short “DRP”] Bengaluru, passed u/sec.144C(5) of the Income Tax Act,
2 ITA.Nos.447 & 448/Hyd./2024 1961 [in short “the Act”], relating to the assessment years 2016-2017 and 2017-2018. Since, common issues are involved in both these appeals, these appeals were heard together and are being disposed by this single consolidated order for the sake of convenience and brevity. First, we will take-up appeal ITA.No.447/Hyd./2024 for the assessment year 2016-2017.
ITA.No.447/Hyd./2024 – A.Y. 2016-2017 :
Brief facts of the case are that, the assessee is a non-resident individual for the assessment year under consideration. The assessee has resided in Saudi Arabia, as an employee working as Sr. Foreman (Civil Contracts) in Facilities Management Department with M/s. Qatar Energy and filed letter dated 25.08.2022 from his employer and earning income from outside India. The assessee has not earned income in India and has not filed return of income for the impugned assessment year 2016-2017. A search and seizure operation under section 132 of the Act was conducted on 22.10.2019 in the case of M/s. Skill
3 ITA.Nos.447 & 448/Hyd./2024 Promoters Pvt Ltd, City Centre Mall, 6th Floor, Road No.1, Hyderabad, which is engaged in the business of Construction (Builders). The said company has entered into a Development Agreement with landlords and developed a commercial mall named "Sarath City Capital Mall" at Kondapur, Hyderabad. During the course of search and seizure proceedings, incriminating information(s)/ document(s)/loose sheets/documents pertaining to the assessee viz., Shri Raziulla Syed were found and as per which certain data in the form of excel sheets with respect to sale of commercial space were seized in pen drive. As the information contained in the seized document relates to the assessee, that he had purchased a commercial property [Agreement No.20/15-16] in Sarath City Capital Mall, Kondapur from M/s. Skill Promoters Pvt. Ltd., [in short “SKPL”] and paid sale consideration of Rs.50,37,400/- through banking channel [Rs.33,77,000/- paid in F.Y. 2015-2016 and Rs.16,67,000/- paid in F.Y. 2016-2017]. On verification, the Assessing Officer noticed that the assessee has not filed return of income for the year under 4 ITA.Nos.447 & 448/Hyd./2024 consideration. Thus, the sources of the cash purchases remain unverified and hence escaped assessment. Therefore, the Assessing Officer has reason believe that income chargeable to tax has escaped assessment to the extent of Rs.33,70,000/- for the assessment year 2016- 2017. The Assessing Officer accordingly reopened the assessment u/sec.147 of the Act and issued notice dated 23.08.2022 u/sec.148 of the Act. Subsequently, the Assessing Officer also issued statutory notices u/sec.142(1) of the Act on various dates 25.01.2023 and 24.04.2023. In response, the assessee had filed part details. After examining the replies of the assessee, the Assessing Officer noted that (1) the assessee has not provided purchase agreement of properties from SKPL (2) The assessee has failed to provide details of payments made and amounts received from SKPL in various years. (3) The assessee has failed to furnish the list of properties purchased from SKPL along with purchase value and stamp duty value of the property and (4) Further, the assessee has not furnished his bank statement for the year under consideration. The 5 ITA.Nos.447 & 448/Hyd./2024 Assessing Officer, therefore, observed that, since the assessee has failed to discharge his onus of providing details in purchase of property from SKPL and the source of acquisition of money of Rs.33,70,000/-, the Assessing Officer treated the said sum as unexplained money and made addition u/sec.69A of the Act in the hands of the assessee.
2.1. The Assessing Officer further noted that, the assessee has claimed exempt income of Rs.9,33,950/- u/sec.10(34) of the Act. However, the assessee failed to furnish details i.e., when it was invested, the source of investment, documentary evidences vis-à-vis investment made and whether investment fulfills eligibility criteria w.r.t. section 10(34) of the I.T. Act, 1961 or any other supporting evidences in respect of claim made by the assessee could be furnished. In absence of above discussed supporting documentary evidences and satisfactorily reply, the claim exemption made under section 10(34) remains unexplained and unverified and, therefore, the Assessing Officer disallowed the exempt income claimed by the assessee and 6 ITA.Nos.447 & 448/Hyd./2024 added to the income assessee. Accordingly, the Assessing Officer determined the total income of the assessee at Rs.43,03,950/- vide Draft Assessment Order dated 30.05.2023 passed u/sec.144C(1) of the Income Tax Act, 1961.
Aggrieved by the Draft Assessment Order passed by the Assessing Officer in making the impugned additions, the assessee filed objections before the Disputes Resolution Panel-1, Bengaluru.
The Learned DRP noted that, as per the seized material, the assessee. Mr. Iqbal Ali Jaweed had purchased a commercial property for a consideration of Rs.50,37,400/- and payment was done through bank channels (Rs.33,70,000/- paid in FY 2015-16 and Rs.16,67,000/- paid in FY 2016-17). However, subsequently the builder, Skill Promoters Private Limited returned back an amount of Rs.48,94,515/- spread over July 2017 and August 2017. The amount Rs.48,94,515/- also appeared in the material seized during the search and seizure action. In view of the 7 ITA.Nos.447 & 448/Hyd./2024 above, the learned DRP observed that, the assessee had ultimately paid Rs.48,94,515/- by way of cash and the remaining amount of Rs.1,42,503/- by way of cheque. Further, the DRP noted that, the assessee has paid a huge sum to builder for purchase of property during the assessment year 2016-17 which couldn't be justified as the assessee was a non-filer for assessment year 2016-17. The DRP after considering the submissions of the assessee, sustained the addition of Rs.33,70,000/- made by the Assessing Officer u/sec.69A of the Income Tax Act, 1961.
4.1. With respect to addition made by the Assessing Officer amounting to Rs.9,33,950/- for the assessment year 2016-2017 on account of exempt income claimed by the assessee u/sec.10(34) of the Act, the learned DRP noted that, the assessee has claimed an amount of Rs.9,33,950/- as exempt income in the ITR. Since the assessee was failed to substantiate the claim with supporting documentary evidences, the Assessing Officer made the addition. The learned DRP further noted that, it is a fundamental principle that, the onus is on the claimant to provide
8 ITA.Nos.447 & 448/Hyd./2024 conclusive documentary evidence to establish his claim. Since the assessee has not produced any supporting documentary evidences, even before the DRP, the learned DRP sustained the addition of Rs.9,33,950/- made by the Assessing Officer u/sec.10(34) of the Income Tax Act, 1961.
In assessment year 2017-2018, the assessee had filed it’s return of income declaring total income of Rs.2,47,030/- on 23.08.2022 in response to notice u/sec.148 of the Income Tax Act, 1961. On identical circumstances, in absence of supporting documentary evidences, the Assessing Officer made addition of Rs.16,67,000/- for purchase of residential property in Sarath City Capital Mall, Kondapur from M/s. Skill Promoters Pvt. Ltd., and paid sale consideration of Rs.16,67,000/- out of total purchase consideration of Rs.50,37,400/- through banking channel [Rs.33,77,000/- paid in F.Y. 2015-2016 and Rs.16,67,000/- paid in F.Y. 2016-2017]. On identical circumstances, in absence of supporting documentary evidences, the Assessing Officer made an addition of Rs.7,09,225/- for the assessment year
9 ITA.Nos.447 & 448/Hyd./2024 2017-2018 by denying the exempt income claimed by the assessee u/sec.10(34) of the Act and also denied the deduction claimed by the assessee u/sec.80C of the Act at Rs.1,50,000/-. Thus, the Assessing Officer determined the total income of the assessee at Rs.27,73,255/- as against the returned income of assessee at Rs.2,47,030/- vide order dated 30.05.2023 passed u/sec.144C(1) of the Income Tax Act, 1961.
The assessee had filed objections before the DRP and the learned DRP on identical circumstances, upheld the Draft Assessment Order passed by the Assessing Officer.
In pursuance to the Directions of the DRP, the Assessing Officer has passed the Final Assessment Orders both dated 13.03.2024 by assessing the total income of the assessee at Rs.43,03,950/- and Rs.27,73,255/- u/sec.147 r.w.s.144C(13) of the Income Tax Act, 1961, for the assessment years 2016-2017 and 2017-2018, respectively.
10 ITA.Nos.447 & 448/Hyd./2024 8. Aggrieved by the Final Assessment Orders passed by the Assessing Officer, the assessee is now in appeals before the Tribunal.
CA P Murali Mohan Rao, Learned Counsel for the Assessee invited the attention of the Bench with respect to initiation of proceedings u/sec.147 is invalid as the approval as per provisions of sec.151 of the Act was obtained from PCIT and as per the amended provisions of sec.151(ii) of the Act the Specified/Competent Authority is “Principal Chief Commissioner or Principal Director General or where there is no Principal Chief Commissioner or Principal Director General, Chief Commissioner or Director General, if more than three years have elapsed from the end of the relevant assessment year." However, in the instant case the Assessing Officer issued notice u/sec.148 on 23.08.2022 i.e., more than 3 years from the end of the impugned assessment year involved in the present appeal i.e., 2016-2017 with the prior approval of Commissioner of Income Tax [International Taxation]-2, Mumbai dated 27.07.2022. Thereby, it was the submission of the Learned
11 ITA.Nos.447 & 448/Hyd./2024 Counsel for the Assessee that approval of Specified Authority u/sec.151(ii) of the Act is not obtained at the time of issue of notice u/sec.148 which is mandatory as per the law existing on that prevailing day. He accordingly submitted that since the root of initiation of proceedings u/sec.148 is invalid as there is no prior approval from the specified authority u/sec.151(ii) of the Act. Consequently, the final assessment order dated 13.03.2024 will become invalid. In support of this contention, the Learned Counsel for the Assessee relied on the decision of ITAT Mumbai Bench in the cases of ACIT vs Manish Financial and Manish Jagdish Joshi vs. CIT.
Shri B Bala Krishna, learned CIT-DR, on the other hand, supporting the Final Assessment Order of the Assessing Officer and the Directions of the DRP submitted that, the assessment year in the present case has been reopened u/sec.147 of the Act as per the pre-amended provisions which applicable on or before 01st April, 2021 and, therefore, the arguments of the Counsel for the Assessee that, the approval required u/sec.151(ii) of the Act
12 ITA.Nos.447 & 448/Hyd./2024 should be from the Principal Commissioner or Commissioner of Income Tax is devoid of merit and not acceptable. Learned CIT-DR further referring to the dates and events submitted that, although, there is no dispute with regard to the fact that, notice in the present case has been served on 01.04.2021 and further, the Assessing Officer by following the directions of Hon’ble Supreme Court in the case of Union of India vs., Ashish Agarwal 2022-SCC- Online-SC-543, has considered the said notice in terms of sec.148A of the Income Tax Act, 1961 as per the new regime of reopening, but, the fact remains that, there is thin line between the date of notice and the assessment order in question and, therefore, the arguments of the assessee that, the assessment order passed by the Assessing Officer in pursuance to the approval of the Commissioner of Income Tax, International Taxation-2, Mumbai, is not in accordance with provisions of sec.151(ii) of the Act is incorrect and should be rejected.
We have heard both the parties, perused the material on record and the orders of the authorities below.
13 ITA.Nos.447 & 448/Hyd./2024 There is no dispute with regard to the fact that, reopening in the present case has been taken-up as per the amended provisions of sec.147, 148, 149, 151 of the Income Tax Act, 1961. As per the amended provisions of sec.148 of the Act which is evident from subsequent notices issued by the Assessing Officer u/sec.148 of the Act dated 27.07.2022 where the Assessing Officer in light of the decision of Hon’ble Supreme Court in the case of Union of India vs., Ashish Agarwal (supra), has considered the earlier notice issued u/sec.148, as fresh notice in light of provisions of sec.148A(d) of the Act. Therefore, it is necessary for us to examine the validity of notice issued by the Assessing Officer u/sec.148 of the Act, after obtaining prior approval of the Commissioner of Income Tax [International Taxation]- 2, Mumbai accorded on 25.07.2022. Admittedly, the Assessing Officer issued notice u/sec.148 of the Act, after obtaining prior approval of the Commissioner of Income Tax [International Taxation]-2, Mumbai, dated 25.07.2022, but, as per the amended provisions of sec.151(ii) of the Act, the Competent Authority for granting sanction u/sec.151(ii) of 14 ITA.Nos.447 & 448/Hyd./2024 the Act, in a case where the assessment has been reopened after 3 years from the end of the relevant assessment year is Pr. CCIT or Pr. Director General of Income Tax, but, not CIT as considered by the learned Assessing Officer. This legal principle is supported by the decision of ITAT, Hyderabad in the case of Raziulla Syed, Hyderabad vs., ITO [Intl. TAXN]-2, Hyderabad in ITA.No.986/Hyd./2024, dated 11.03.2025 for the assessment year 2017-2018, where under identical set of facts, the Tribunal by following certain judicial precedents including the decision of Hon’ble Bombay High Court in the case of Siemens Financial Services (P.) Ltd., vs., DCIT [2023] 457 ITR 647 (Bom.) held as under :
“7. We have heard the rival submissions of both the parties and perused the material available on record. There is no dispute between the parties that the assessee is a Non-Resident Indian. Admittedly, in the instant case, the assessment has been reopened u/sec.147 of the Act by issuance of notice u/sec.148 of the Act dated 23.04.2021 and by virtue of the order of Hon’ble Supreme Court in the case of Union of India vs. Ashish Agarwal reported in 2022-SC-Online-SC-543, re-assessment notice issued has been treated as notice issued u/sec.148A of the Act and after due procedure final notice u/sec.148 of the Act dated 30.07.2022 was issued. The assessee contends that any re-assessment notice issued u/sec.148 of the Act after 1st April, 2021 falls under 15 ITA.Nos.447 & 448/Hyd./2024
New Scheme of re-assessment proceedings and as per sec.151, the approval of the Specified Authority as specified therein should be obtained. According to the assessee, under New Scheme of re- assessment proceedings, the Specified Authority u/sec. 151(ii) of the Act, in case an assessment is reopened after a period of three years from the end of the relevant assessment year, the Principal Chief Commissioner or Principal Director General are the Specified Authority(ies). Since in the present case, the Assessing Officer has issued notice u/sec.148 of the Act dated 30.07.2022 after approval from Principal Commissioner of Income Tax-1, Hyderabad, the said approval is not in accordance with provision of sec.151(ii) of the Act and consequently, the notice issued by the Assessing Officer and assessment order passed u/sec.147 r.w.s.144C(13) of the Act dated 02.03.2024 is illegal, void abinitio and liable to be quashed. 7.1. There is no dispute with regard to the fact that the Assessing Officer issued original notice u/sec.148 of the Act for the assessment year in question on 23.04.2021 and as per new scheme of re-assessment procedure, the same has been treated as notice issued u/sec.148A of the Act in light of decision of Hon’ble Supreme Court in the case of Union of India vs. Ashish Agarwal (supra) and finally re-assessment notice u/sec.148 was issued to the assessee on 30.07.2022 after approval from the Principal Commissioner of Income Tax-1, Hyderabad dated 27.07.2022. As per the provisions of sec.151(ii) of the Act, if the reopening of the assessment is after three years from the end of the relevant assessment year, then the Specified Authority for grant of approval is Principal Chief Commissioner of Income Tax or Principal Director General of Income Tax and this legal principle is supported by the decision of Hon’ble Supreme Court in the case of Union of India vs. Rajeev Bansal [2024] 167
16 ITA.Nos.447 & 448/Hyd./2024 taxmann.com 70 (SC) wherein the Hon’ble Supreme Court has analysed the issue in light of decision of Hon’ble Supreme Court in the case of Union of India vs. Ashish Agarwal (supra), relevant Circulars/Notifications issued by CBDT and provisions of Taxation and Other Laws Amendment Act, 2021 [in short “TOLA”] and after considering relevant facts held that after 01.04.2021, the New Regime has specified different authorities for granting sanction u/sec.151(ii) of the Act and in case the assessment is reopened after three years from the end of the relevant assessment year, then the Specified Authority to grant sanction is the Principal Chief Commissioner of Income Tax or Principal Director General of Income Tax. In the present case, there is no dispute with regard to the fact that the Assessing Officer issued notice u/sec.148 of the Act dated 30.07.2022 with the prior approval of Principal Commissioner of Income Tax-1, Hyderabad accorded on 27.07.2022 vide Ref.F.No.Pr.CIT-1/Hyd/147/2022- 23. Therefore, in our considered view, notice issued by the Assessing Officer u/sec.148 of the Act dated 30.07.2022 with the approval of Principal Commissioner of Income Tax-1, Hyderabad dated 27.07.2022 is not in accordance with the provisions of sec.151(ii) of the Act and consequently, the re-assessment order passed by the Assessing Officer u/sec.147 r.w.s.144C(13) of the Act is illegal, void abinitio and liable to be quashed.
7.2. The assessee has relied upon the decision of ITAT, Mumbai in the case of ACIT vs. Manish Financial ITA.No.5055/Mum./2024 wherein the Tribunal after considering the relevant provisions of law and also by following decision of Hon’ble Supreme Court in the case of Union of India vs., Rajeev Bansal (supra) held as under : "In assessee's case from the perusal of para 3 of the notice issued under section 148 for AY 2016-17 we notice that the 17 ITA.Nos.447 & 448/Hyd./2024 same is issued with the prior approval of Pr.CIT-19 Mumbai accorded on 29.07.2022 vide reference No.Pr.CIT- 19/148/2022-23 and this fact is not contravened by the ld DR. For AY 2016-17, the period of three years have elapsed as of 31.03.2020 and the notice is issued beyond three years on 30.07.2022. Therefore as per the decision of the Hon'ble Supreme Court, the approval should have been obtained under the amended provisions of section 151(ii) of the Act i.e. the approval should have been obtained from the Principal Chief Commissioner whereas the approval has been obtained from Pr. CIT as stated in the notice under section 148 itself. Therefore we see merit in the contention of the assessee that the notice under section 148 for AY 2016-17 is issued without obtaining the prior approval from the appropriate authority. Accordingly we hold that the notice under section 148 is invalid and the consequent assessment under section 147 is liable to be quashed."
7.3. The assessee also relied upon the decision of ITAT, Mumbai Bench in the case of Manish Jagdish Joshi vs. CIT ITA.No.1617/Mum./2024 and the Mumbai Bench of the Tribunal by following the decision of Hon’ble Bombay High Court in the case of Siemens Financial Services (P.) Ltd., vs. DCIT [2023] 457 ITR 647 (Bom.) held as under : “We find that while considering the similar issue and similar submissions the Hon'ble Jurisdictional High Court in Siemens Financial Services (P.) Ltd. v/s DCIT, (2023) 457 ITR 647 (Bom.) held that TOLA would not affect the scope of section 151 and sanction of Specified Authority was to be obtained in accordance with the law existing when the 18 ITA.Nos.447 & 448/Hyd./2024 sanction was obtained. It was further held that where the Assessing Officer issued a reopening notice beyond the period of three years, approval was required to be taken as per provisions of amended section 151 from the Principal Chief Commissioner or Principal Director General or Chief Commissioner or Director General. Therefore, respectfully following the aforesaid decision of the Hon'ble Jurisdictional High Court we find no merits in the reliance placed by the Revenue on the provisions of TOLA. As, in the present case, the period of three years has elapsed from the end of the relevant assessment year and the order dated 23/05/2022 was passed under section 148A(d) of the Act after obtaining the approval of the Principal CIT-1, Mumbai vide letter dated 15/07/2022, we are of the considered view that the Revenue has not followed the mandatory provisions of the Act while initiating the reassessment proceedings and sanction of the Specified Authority is not in conformity with the law prevalent at the time of grant of sanction." 7.4. In this view of the matter and by respectfully following the decision of Hon’ble Supreme Court in the case of Union of India vs. Rajeev Bansal (supra) and also the decisions of ITAT, Mumbai Benches, Mumbai in the cases of ACIT vs. Manish Financial and Manish Jagdish Joshi vs. CIT (supra), we are of the considered view that the notice issued by the Assessing Officer u/sec.148 of the Act dated 30.07.2022 by obtaining prior approval from the Principal Commissioner of Income Tax-1, Hyderabad dated 27.07.2022 and consequential final assessment order dated 02.03.2024 passed by the Assessing Officer u/sec.147 r.w.s.144C(13) of the Act is illegal, void abinitio
19 ITA.Nos.447 & 448/Hyd./2024 and thus, we quash the final assessment order dated 27.07.2022 passed by the Assessing Officer.”
In this view of the matter and considering the facts and circumstances of the present case and also by following the decision of ITAT, Hyderabad Bench, Hyderabad in the case of Raziulla Syed, Hyderabad vs., ITO [Int. TAXN]- 2, Hyderabad (supra), we are of the considered view that the notice issued u/sec.148 of the Act dated 27.07.2022 by obtaining prior approval from the Commissioner of Income Tax [International Taxation]-2, Mumbai dated 25.07.2022 is not in accordance with sec.151(ii) of the Income Tax Act, 1961 as applicable from 01.04.2021 onwards. Therefore, we quash the notice issued u/sec.148 of the Act dated 01.04.2021 and 27.07.2022 and consequent Final Assessment Order dated 13.03.2024 passed by the Assessing Officer u/sec.147 r.w.s.144C(13) of the Income Tax Act, 1961. Accordingly, the grounds raised by the assessee for the assessment year 2016-2017 are allowed.
In the result, appeal ITA.No.447/Hyd./2024 for the assessment year 2016-2017 of the Assessee is allowed.
20 ITA.Nos.447 & 448/Hyd./2024 14. On identical set of facts, the appeal of the assessee, for the assessment year 2017-2018 in ITA.No.448/Hyd./2024, is also allowed as per our observations in the preceding paragraph nos.11 and 12 hereinabove. Accordingly, the appeal of the assessee ITA.No.448/Hyd./2024 for the assessment year 2017-2018 is allowed.
In the result, ITA.No.448/Hyd./2024 of the assessee for the assessment year 2017-2018 is allowed.
To sum-up, ITA.Nos.447 & 448/Hyd./2024 of the Assessee are allowed. A copy of this common order be placed in the respective case files.