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Facts
The Revenue filed five appeals against the order of the CIT(A) which allowed the assessee's appeals, setting aside assessment orders for assessment years 2011-12, 2012-13, 2014-15, 2015-16, and 2016-17. The CIT(A) held that the additions made by the AO were not sustainable on technical grounds, specifically regarding the validity of notices under Section 148 of the Act.
Held
The Tribunal held that the appeals filed by the Revenue were not maintainable. This was because the Revenue subsequently issued notices under Section 153C of the Act after the CIT(A)'s order, thereby accepting the CIT(A)'s decision. The Tribunal relied on the Rajasthan High Court's decision in Shyam Sunder Khandelwal's case.
Key Issues
Whether the appeals filed by the Revenue are maintainable when they have subsequently issued notices under Section 153C after the CIT(A) set aside the assessment orders based on invalid Section 148 notices.
Sections Cited
148, 147, 153C
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Income Tax Appellate Tribunal, JAIPUR BENCHES,”A-Bench” JAIPUR
Before: SHRI GAGAN GOYAL, AM & SHRI NARINDER KUMAR, JM
Per Bench: This common order is to dispose of the above captioned 5 appeals filed by the department, as common issue as to the maintainability of these appeals is involved, and same arguments have been advanced. 2. The above captioned 5 appeals have been filed by the Revenue, feeling aggrieved by order dated 06.12.2024 passed by Learned CIT(A), whereby the appeal filed by the assessee-appellant, relating to the 5 assessment years 2011-12, 2012-13, 2014-15, 2015-16 and 2016-17, To319/JPR/2025 Mukesh Kapoor, Jaipur. came to be allowed, resulting in setting aside of five separate assessment orders in respect of the said five assessment years.
In a nutshell, Learned CIT(A), held that the additions made by the Assessing Officer in respect of all the said five years did not survive on technical ground i.e. notice u/s 148 of the Act being legally not sustainable. Said finding of Learned CIT(A) in all the five appeals is based on decision by our own Hon’ble High Court in Shyam Sunder Khandelwal vs. Assistant Commissioner of Income Tax, (2024) 161 taxmann.com 255 (Rajasthan), D.B. Civil Writ Petition No. 18363/2019, wherein notices u/s 148 of the Act and the impugned orders under challenge therein, were quashed.
The impugned orders passed by Learned CIT(A) are based on the following reasons and findings :- “4.2.7 In the above order Hon'ble High Court, Rajasthan has quashed the notices issued under Section 148 and the resultant assessment orders. As per the above judgement, in cases of the person other than on whom search was conducted but material belonging or relating such person was seized or requisition, the AO has to proceed under Section 153C of the Act instead of section 147/148 of the Act., as the proceedings in the relevant cases were initiated based on the incriminating material and documents including Pen Drives seized during the search carried out of in the case of Ramesh Manihar Group and the statements recorded during proceedings. Further, as per the order of the Hon'ble High Court, Rajasthan, applicability of Section 153C in cases where the seized material To319/JPR/2025 Mukesh Kapoor, Jaipur. related to or belonged to person other than on whom search is conducted or requisition made does not render Section 148 otiose. Section 148 shall continue to apply to the regular proceedings and also in cases where no incriminating material is seized during the search or requisition. 4.2.8 As per decision of Hon'ble High Court, Rajasthan in the above writ petition, it is clear that the notice issued u/s 148 of the I.T.Act, 1961 and the assessment order in the cases which were reopened on the basis of incriminating documents seized during the course of search in the case of Ramesh Manihar Group are quashed. 4.2.9 Considering the facts of the present case, it is noticed that the case of the appellant was also reopened u/s 148 of the 1.T.Act, 1961 by the Id. AO on the basis of information of advancing of unaccounted cash loans by the appellant through the broker Sh. Ramesh Chand Maheshwari and on the basis of seized material during the course of search proceedings in the Ramesh Manihar Group. 4.2.10 In the light of the above decision, as the facts of the present case are similar, hence the above judgement of Hon'ble High Court is squarely applicable in the present case of the appellant. 4.2.11 Accordingly, the order passed by the AO u/s 147 of the IT Act, 1961 has become ineffective as on date as the Hon'ble High Court Rajasthan has quashed the notice u/s 148 of the I.T.Act, 1961 and impugned orders in the cases which were re-opened on the basis of seized material during the course of search proceedings in the Ramesh Manihar Group. 4.2.12 In these circumstances, the assessment order u/s 147 of the I.T.Act, 1961 under challenge in present appeal does not survive, the assessment order passed by the AO has become infructuous. Hence the ground of appeal challenging the legality of notice issued u/s 148 of the Act is hereby allowed.”
It may be mentioned here that in para 40 of the decision in Shyam Sunder Khandelwal case (supra), Hon’ble High Court observed that the To319/JPR/2025 Mukesh Kapoor, Jaipur. Revenue shall be at liberty to proceed against the assessee in accordance with law.
Today, Ld. AR for the assessee has brought to our notice that after the passing of the impugned orders by Learned CIT(A), the department issued notices u/s 153C of the Act, in respect of all the five assessment years, and further that the assessee has been participating in said proceedings u/s 153C of the Act. Ld. AR has placed on record copies of the five notices u/s 153C of the Act.
Present appeals came to be presented by the department on 28.02.2025 i.e. after issuance of the above said notices u/s 153C of the Act. In this situation, department can safely be said to have accepted the impugned orders passed by Learned CIT(A) in all the five appeals of the assessee. Conclusion 8. As a result, we are of the considered opinion that having issued notice(s) u/s 153C of the Act, on the facts and material already within the know of the department, in terms of the impugned orders passed by Ld. CIT(A), which are based on decision by our own Hon’ble High Court in Shyam Sunder Khandelwal’s case, present appeals, which came to be To319/JPR/2025 Mukesh Kapoor, Jaipur. presented subsequently i.e. after the issuance of the notice(s) under section 153 C, are held to be “not maintainable”. Result (in 5 appeals) 9. In view of the above findings, all these appeals filed by the department are hereby dismissed, being not maintainable. Files be consigned to the record room after the needful is done by the office. Copy of this common order be placed on the connected files. Order pronounced in the open court on 19/11/2025.