VINITA BAJORIA,JAIPUR vs. INCOME-TAX OFFICER, JAIPUR

2. The learned Commissioner of Income-tax (Appeals), NFAC, Delhi has erred in law and facts by not commenting and deciding my other ground of appeal with regard to my objection to the notice issued under section 148 of the Income- tax Act, 1961 for reopening of my assessment for the Assessment Year 2016-17 as the Assessing Officer has not provided all the materials in his possession relying him that I have escaped income of Rs. 2.50 crores along-with his letter dated 1st June, 2022 making gross violation of the specific direction given by honorable Supreme Court of India in the para no. 10 of the Order in the case of Union of India & Others vs. Ashish Agarwal in Civil Appeal No. 3005/2022 dated 04.05.2022 directing the Assessing Officer that he shall, within thirty days from today (04.05.2022) provide to the respective assessees information and material relied upon by the Revenue, so that the assesees can reply to the show cause notices within two weeks thereafter.

3. The appellant craves to save her right to add, delete, amend, alter, modify and/or abandon any ground of this appeal at the time or before the actual hearing of the case.

3. Succinctly, the fact as culled out from the records is that the revenue was in possession of information flagged by the Directorate of Income Tax (Systems) which is received in Insight portal, as per information assessee been found that assessee has filed his return of income on 02/12/2016 with declaring total income of Rs. Nil only. The return income as shown by the assessee does not sync with the consideration of the property sold. In view of the above facts, it is concluded that there is escapement of income Rs.2,50,00,000/- in the case of the assessee for the AY 2016-17.

3.1 Based on the above information, a notice under section 148 of Act was issued to the assessee on 02.06.2021 for Assessment Year 2016-17 with prior approval of the Appropriate Authority. As the matter of issue of notice u/s 148 was subject matter of litigation before the Hon'ble Supreme Court. The Hon'ble Supreme Court in Ashish Agarwal Case in Civil Appeal No. 3005/2022, vide its order dated 04/05/2022, directed that the above referred notice under section 148 of the Act issued shall be construed or treated to be the show-cause notice in term of Section 148A(b) of the (amended) Act. Ld. AO following the directions of the Hon'ble Supreme Court, the information and documents was provided to the assessee on 01.06.2022. The said letters was sent to the assessee in the assessee’s registered email through ITBA. Thereon, an order under section 148A (d) of the Act dated 26.07.2022 was passed and the assessee’s case for 148 of the Act dated 26.07.2022.

3.2 On 08.02.2023, an objection to the reopening of the case was filed by the assessee. Record reveals that on 08.02.2023 the assessee replied that the assessee has filed a writ petition against the order passed under section 148A(d) of Income Tax Act, 1961 dated 26. 07. 2022 and the notice issued under section 148 of Income Tax Act, 1961 dated 26.07.2022 before the Hon'ble High Court at Jaipur which is on hearing stage. The assessee was requested to provide a copy of the stay order of the Hon'ble Court, if any. In absence of any such order, ld. AO proceeded to make the assessment in accordance with law and thereby after a detailed discussion ld. AO made the assessment by observing as under :

In view of the above, very claim of the assessee of the alleged bearing of loss on the alleged sale of unquoted shares amounting to Rs. 1,15,89,010/- could not be substantiated. And the set off of the Long Term Capital Gain of Rs. 1,70,50,152/- with alleged Long Term Capital Gain amounting to Rs. 1,15,89,010 has not been found correct. In view of the above, the claim of the assessee of set off loss of LTCG on sale of immovable property amounting to Rs. 1,70,50,152/- is not allowed for the aforesaid reasons.

4. Aggrieved from the order of the National Faceless Assessment Center, assessee preferred an appeal before the ld. CIT(A). Apropos to the grounds so raised the relevant finding of the ld. CIT(A) is reiterated here in below:

Vinita Bajoria vs. ITO 3. Ajdudication & Decision: 3(a). The assessee raised various grounds contesting the procedural lapses in reopening the assessment and concluding the same exparte u/s. 144 of the IT Act without giving sufficient opportunity.

3(b). I have considered the facts and circumstances of the case. From the facts of the case, it is seen that during the year under consideration, the assessee sold shares of M/s. Bhavya Inductosteel Pvt. Ltd, Jaipur and arrived at long term capital loss of Rs. 1,15,89,010/- and the same was set off against gains on sale of one more property sold for Rs. 2,51,00,000/-. The assessee contends that she has submitted sufficient details during the course of assessment proceedings. However, from the assessment order, it is seen that the AO passed an exparte order u/s. 144 of the IT Act without bringing proper justification for the additions made and without confronting relevant material to the assessee. Thus, the assessee is deprived of sufficient opportunity. Therefore, by following the principles of natural justice, the assessment made by the AO is hereby set aside as per proviso of Section 251 (1)(a) of the IT Act which is applicable from 01.10.2024 onwards which reads as follows:-

In disposing of an appeal, the Commissioner (Appeals)shall have the following power---

(a) in an appeal against an order of assessment, he may confirm, reduce, enhance or annul the assessment

Provided that where such appeal is against an order of assessment made under section 144, he may set aside the assessment and refer the case back to the Assessing Officer for making a fresh assessment.

As per above provisions, the assessee's case is hereby set aside and the AO is hereby directed to do a fresh assessment. Needless to say that the AO should give a reasonable and fair opportunity to the assessee to file necessary submissions and explanations. After considering the same, the AO should pass a judicious and fair assessment order afreshly. Accordingly, the assessee's grounds are hereby partly allowed.

In the result, the assessee's appeal is partly allowed.”

5. Feeling dissatisfied with the finding so recorded in the order of the ld. CIT(A), the assessee preferred the present appeal before this tribunal contending that the ld. CIT(A) has not decided the technical ground raised in the appeal and thereby wrongly set aside the case before the ld. AO. To support the various grounds so raised by the ld. AR of the assessee, has filed the written submissions in respect of the various grounds raised by the assessee and the same is reproduced herein below:

In response of the captioned Appeal and with regard to submissions by the Ld. DR during the course of hearing, the Assessee wants to further submissions towards the Ld. DR’s responses as follows:-

Date of Under Date of Date of Remarks Notice Section Hearing Submission 26.07.2022 148 NA 30.08.2022 ITR has been filed in response of notice u/s 148. 02.02.2023 143(2) 08.02.2023 NA Window has been opened after filing of ITR by the assessee by issuing notice u/s 143(2) and no information has been called- off vide such notice. 06.02.2023 142(1) 08.02.2023 08.02.2023 In response of notice the assessee filed her objections on issue of notice u/s 148 as before it the same was not possible to file the same as window was not open for the assessee to submit anything. And requested to the FAO to decide on the objections.

21.02.2023 142(1) 27.02.2023 24.02.2023 Same information again called by the FAO as in notice dated 06.02.2023 without disposing the objection of the Assessee. The assessee again requested to first dispose-off the objection before further proceeding on the re-assessment in view of ruling settled by honorable Supreme Court of India in the case of GKN Driveshafts case. 15.05.2023 Letter 15.05.2023 No No response could be filed by response the assessee as the letter fixed same date to reply as of the date of the letter comes to knowledge of the assessee on very next date. 17.05.2023 Show Cause 19.05.2023 19.05.2023 After disposing-off the Notice objections raised by the assessee on notice u/s 148 by the FAO on 17.05.2023, on the same day a SCN has been issued by the FAO fixing date to response on 19.05.2023. The assessee furnish her detailed reply on the scheduled date in response of such SCN covering each and every aspect of the SCN and has furnished all the information/ explanation/ documents called by the FAO in the said SCN. The assessee also requested for VC if the FAO is not satisfied by the submission of the assessee. 22.05.2023 Video 23.05.2023 23.05.2023 VC has been attended on the Conferencing scheduled date along-with other submissions, question has been again raised on reopening of the assessment on the wrong facts which has been replied by the FAO to consider. Some documents/ explanation were also called by the FAO which were submitted on the same day and nothing was pending which the FAO has called for.

Form the above summary of facts, it may clearly conclude that the assessee has duly complied all the obligations on her part and fully co-operate the department with regard the same. Although the FAO has not given sufficient time for response from the assessee in contravention of the process prescribed in the SOP dated 03.08.2022 issued by the National Faceless Assessment Centre, Delhi under section 144B(6)(xi) wherein it is provided that timelines to be given for obtaining response from the assessee must be minimum of 15 days in the case of initial Questionnaire and of 7 days in the case of subsequent notices unless the limitation date for completing the assessment is approaching. In spite of the same the assessee has complied all the notices well within the scheduled time limit but the assessment has been completed u/s 144 of the Act. Even, at the time of VC, the FAO has not inform about in deficiencies in the documents/information (Copies of acknowledgements of all compliances and SOP dated 03.05.2022 of NFAC, Delhi are attached herewith as Annexure-A). Although, this aspect does not affect the case.

a) The Ld. DR has submitted that the assessee has herself submitted before the Investigation wing on 15.02.2018 in response of notice dated 19.01.2018 u/s 133(6) of the Income-tax Act, 1961 that the total sale consideration of the property was Rs. 2.50 crores for the property having identical same address and has not submitted copy of her reply dated 15.02.2018 before the honorable ITAT.

In this regard, it is submitted that property address is identically same and actual transaction value was Rs. 2.51 crores which was rightly included in the ITR by the assessee. Rs. 1.00 lacs given in cash as an advance (Bayana) by the buyer at the time of finalization of transaction could not be included inadvertently in the Sale Deed but later on the assessee has taken correct amount of sale consideration in her ITR. However, the assessee has not taken this aspect in her grounds of appeal. Even, the Assessing Officer has also not disputed this aspect during the entire assessment procedure and the same may be perceived from the followings documents/events:- i) Order of the Assessing Officer dated 26.07.2022 u/s 148A(d) of the Act (Paper Book Page No. 70 to 98) wherein nowhere this aspect has been mentioned by the Assessing Officer in spite of specific information about the same by the assessee in her reply in response of the notice u/s 148A(b).

Vinita Bajoria vs. ITO ii) Order disposing objections of the assesse dated 17.05.2023 (Paper Book Page No. 106 to 109). In this order also the FAO has not comment on this aspect anywhere. iii) Re-assessment Order dated 26.05.2023 (Paper Book Page No.127 to 137). In this final order also, the FAO has not commented anything about the issue and taken sale consideration at Rs. 2.51 crores. iv) During the Video Conferencing on 23.05.2023 also, this aspect has not been discussed by the FAO at all.

Thus, both Assessing Officers, i.e. the JAO and FAO have not taken these as two transactions and they have clearly referred the same only a single transaction while recording the reason for his satisfaction to reopen the assessment u/s 147 of the Act as well as during the entire assessment proceeding. He never mentioned anywhere that he was thinking about the different property at the time of recording the reasons of his satisfaction to reopen the assessment. This is completely a post think story of the Ld. DR. b) With regard to non-submission of assessee’s reply dated 15.02.2018 to the Investigation Wing, it is submitted that the assessee didn’t possess acknowledged copy of her such reply dated 15.02.2018 hence, she could not include copy of such letter before the honorable ITAT. Although, she didn’t have such intention as she has duly referred the notice dated 12.12.2017 from the Investigation wing in response of which such reply has been filed and submitted copy of the same in her paper book (Paper Book Page No. 25) which clearly shows that the assessee never have intention to hide anything. However, the same also don’t serve any purpose of the Ld. DR. c) It is already submitted above that at the time of Sale Deed, sale consideration has been taken at 2.50 crores inadvertently in place of Rs. 2.51 crores as Rs. 1.00 lac has been received in cash as advance at the time of finalization of the transaction. Although, the assessee has taken correct amount at Rs. 2.51 crores in her ITR. Address of the property as well as Sale Date of the transaction is also same at all relevant places. d) With regard to difference in mode of payment of the Sales Consideration, it is mentioned that originally the buyer has given three cheques as mentioned in the Sale Deed but all these three cheques got dis-honored when presented into bank for payment. Later on, the Sale consideration has been cleared through RTGS by the buyer on different dates and the same has been duly informed to the department. However, contention of the Ld. DR that information about the Vinita Bajoria vs. ITO dis-honored of the cheques were not given to the department, it is submitted that this issue was never raised by the department and no query about the same has been made during the entire proceedings hence, such reply could not be given. However, date-wise detail sheet of the payment received supported by bank statements of the assessee has duly been submitted to the department. Hence, all information about the payments was already in the possession of the department.

Hence, intention of the Ld. DR to divert the facts in another direction does not affect the fact that jurisdiction over the assessment has wrongly been assumed by the AO by reopening the assessment on the basis of wrong facts.

4. In the case law of Indu Lata Rangwala Vs. Deputy Commissioner of Income-tax [2017] 80 taxmann.com 102 decided by the honorable Delhi High Court referred by the Ld. DR in his submission dated 17.07.2025 running from second para of page no. 4 to the end of the submission explaining the legal position that there is no requirement of fresh material for reasons to believe, it is submitted that such case law itself contain in para 35.7 (mentioned in second last para at page no. 5 of the submission of the Ld. DR dated 17.07.2025) that the AO can form reasons to believe that income has escaped assessment by examining the very return and/or the documents accompanying the return. In the present case the assessee, the AO has complete information about the inclusion of the alleged transaction of property sale in the ITR of the assesse and ITR itself specifically contain such transaction but the AO has reopened the assessment simply stating that the alleged transaction has not been declared in the ITR by the assessee.

Vinita Bajoria vs. ITO Such case law also not empowers the Assessing Officer to reopen the assessment on the basis of wrong fact. Facts of the above cited case by the Ld. DR is entirely different then the facts of the assessee as in the said case law, the assessee has wrongly claimed loss of the firm in her individual ITR in contravention of the provision of section 10(2A) of the Act as well as claimed some excessive expenditure in her P&L Account and these reasons have been recorded to reopen the assessment and reopen was not done on the basis of wrong facts as done in the case of the assessee.

The other case laws relied by the Ld. DR i.e. ACIT Vs. Rajesh Jhaveri Stock Brokers (P) Ltd. and DCIT Vs. Zuari Estate Development & Investment Co. Ltd. also don’t apply in the case of the Assessee as facts of these cases were also different. In Rajesh Jhaveri case, the reopening was made on the observations made during the Revenue Audit on non-compliance by the assessee of certain conditions of section 36(1)(vii) read with section 36(2) of the Act and in the Zuari Estate case, the assessee has not included certain transaction of property sale in its ITR whereas the assessee in question has duly declared the alleged transaction in her ITR and no discrepancy could be observed by the AO in the same during the entire assessment proceedings.

It is also pertinent to mention here that in the case of ACIT Vs. Rajesh Jhaveri Stock Brokers (P) Ltd. on which the Ld. DR is relying, the Apex Court has observed that “at the stage of issue of notice (i.e. u/s 148 of the Act), the only question is whether there was relevant material on which a reasonable person could have formed a requisite belief whether the material would conclusively prove the escapement is not concern at this stage.”

The above observation of the Apex Court itself establishes that reopening of any assessment should be based on some additional fresh and tangible material. This aspect of the law also have been established in number of judicial pronouncements of various courts some of which already been mentioned the written submission of the assessee.

Here, it is also submitted that the facts of the three case laws submitted before the honorable bench on 17.07.2025 on behalf of the assessee are identical and similar as of the facts of the assessee and these case laws squarely cover the facts of the assessee. Specifically, in the case of S.R. Cold Storage Vs. Union of India (Writ Tax No. 723 of 2022), the honorable High Court of Allahabad on 11.08.2022 have discussed in length the entire pre-position of law to reopen the assessment and has specifically decided that no reopen can be made on the Vinita Bajoria vs. ITO basis of wrong facts. Even the honorable High Court has imposes a penalty of Rs. 50.00 lacs on Union of India to cause serious harassment to the assessee based on wrong facts and by mis-utilization of the entire process of faceless assessment. This case law is applicable on the assessee word to word and covers all four corners of the assessee’s case. The assessee has harassed at each stage of the entire assessment proceedings and the JAO as well as the FAO has acted purely according to their whims & wish completely ignoring all the submissions of the assessee during entire re-assessment procedure. In final Re- assessment order dated 26.05.2023, addition in the body of the Assessment Order has been made for Rs. 1,15,89,010/- (First line of Page No. 136 of the Paper Book) as Long-term Capital Gain whereas in the variation table on the same page, it has been taken at Rs. 1,70,52,152/- and in Computation Sheet it has been taken at Rs. 2.51 crores as Income from Other Sources thus, totally using his power absolutely in arbitrary manner. Even, the Ld. CIT(A), NFAC, Delhi also not considered all the grounds of appeal of the assessee and simply passed the order setting aside the Assessment Order and sending back to the AO by applying new powers in the case of assessment us/ 144 of the Act.

Facts of the case of Bimla Kumari Lajpatraj Hurra Vs. ITO (2023-TIOL-509-HC- AHM-IT), are also squarely same as the facts of the assessee as in this case. The reopen was made on the basis that the alleged transaction of the sale of the property was not shown in the ITR by the assessee whereas the assessee has duly included the alleged transaction in her original ITR. In this case, the honorable Gujarat High Court has observed as follows and decided in favour of the assessee:-

“6.1 Neither there existed foundational facts, nor it could be said that any tangible material was available with the assessing officer to justify exercise of power. It could be said that the basis for reopening was absent. When the foundation was missing, there could not have been erection of ground to seek reopening of assessment. It could not be said, in the facts of the case, that the assessing officer could have harboured a reason to believe acceptable in eye of law to seek reopening”

It will also worthwhile to mention here that the honorable Gujarat High Court also considered the case of ACIT Vs. Rajesh Jhaveri Stock Brokers (P) Ltd., which has been relied by the Ld. DR, in the abovementioned judgment itself and after considering all the relevant position of law has decided in the favour of the assessee.

Similarly, facts of the case of Smt. Taruna Verma Vs. ITO (ITA No. 2496/Del/2018), are also same as the facts of the assesse as in this case.

Vinita Bajoria vs. ITO Reason recorded for reopening are factually incorrect and there was no link between material and formation of opinion. Hence, the honorable SMC, Delhi bench of Income-tax Appellate Tribunal has quashed the reopening of the assessment.

Form the above submission, it is clear that the case law of Indu Lata Rangwala Vs. Deputy Commissioner of Income-tax, ACIT Vs. Rajesh Jhaveri Stock Brokers (P) Ltd. and DCIT Vs. Zuari Estate Development & Investment Co. Ltd., relied by the Ld. DR, are not relevant in this case as facts of these cases differs with the case of the assessee and the three cases submitted by the assessee squarely cover the case of the assessee.

5. With regard to rely of the Ld. DR on the case law of N Govindaraju Vs. Income-tax Officer [2015] 60 taxmann.com 333 decided by the honorable High Court of Karnataka, it is submitted that the honorable High Court also emphasized that while taxing any other income in place of the alleged income on the basis of which the reopening has been done, it is necessary that the notice under section 148(2) of the Act must found to be valid. Satisfaction of the reasons for the notice should be sufficient. The honorable court observed that if the foundation goes, then the structure cannot remain, meaning thereby, if notice has no sufficient reason or is invalid, no proceedings can be initiated.

In the present case of the assessee, reasons recorded to the satisfaction of the AO for reopening of the case itself wrong thus, the notice itself invalid. The notice u/s 148 of the Act for reopening of the assessment is invalid due to following deficiencies:- a) The notice has been issued on the basis of wrong fact. The recorded reason is that that alleged transaction of the sale of the property has not been declared in the ITR by the assessee whereas the same has been declared by the assesse in its entirety. b) The notice dated 01.06.2022 u/s 148A(b) issued by the AO in view of the decision of the honorable Apex Court in the case of Ashish Agarwal & Others (from which this entire re-assessment proceedings got its life), the vary condition imposed by the honorable Supreme Court in such order has not been complied by the Assessing Officer. The Honorable Supreme Court has specifically directed the AO to supply to the assessee along-with the notice u/s 148A(b) of the Act, the complete materials in his possession on which he relied to frame his belief about escapement of the income. But the assessing officer has not supply any material Vinita Bajoria vs. ITO to the assessee even during the entire re-assessment proceedings (No submission has been made by the Ld. DR on this ground of Appeal). c) Necessary sanction of the specified authority as provided in section 151 of the Act has not been taken by the Assessing Officer while reopening of the assessment. According to the section, sanction of Principal Chief Commissioner of Income-tax was mandatory to issue notice u/s 148 of the Act after 30.06.2021 as notice to the assessee u/s 148 was issued on 26.07.2022 but sanction has been taken from the Pr. Commissioner of Income Tax-2, Jaipur (No submission has been made by the Ld. DR on this ground of Appeal).

All above mentioned deficiencies in the notice u/s 148 of the Act makes it invalid hence, the argument of the Ld. DR on the basis of case law of N Govindaraju Vs. Income-tax Officer [2015] 60 taxmann.com 333 does not have any value in the eyes of law.

It will also be worthwhile to mention here that judgment of jurisdictional Rajasthan High Court in the case of Shri Ram Singh 217 CTR 222 (RAJ), and judgments of this honorable Jaipur bench in the cases of Shri Digamber Jain Atikshaya Keshtra VPO Bada vs ITO dated 22nd August, 2023 [Appeal Satish Kumar Khandelwal vs. ITO [2021] 127 taxmann.com 683, Narain Dutt Sharma vs. ITO [2018] 166 taxlok.com (IT) 663 (Jaipur) and Pradeep Kumar Dhanraj vs ITO [2023] 196 TAXLOK.COM (IT) 229 (Jaipur) squarely cover the case of the assessee and are most relevant.

In light of the above submissions, facts on record and position of the law, the Appellant respectfully prays that: • The reassessment proceedings initiated under section 147, and • The reassessment order passed u/s 147 r.w.s. 144 be kindly held to be without jurisdiction, bad in law and liable to be quashed.

S. No. Particulars Page Nos. 1. Synopsis of the Case 1 to 3 2. Chronology of Events 4 to 5

3. Grounds of Appeal

before ITAT 6

4. Written Submissions 7 to 20

5. Copy of Acknowledged ITR (Dated 02/12/2016; Ack. No. 21 550266461021216) (Annexure-A)

6. Computation of Income (Annexure-B) 22 to 23 7. Copies of Notices from Investigation Wing (Annexure-C) 24 to 25 8. Copies of Replies to Investigation Wing (Annexure-D) 26 to 27 9. Copy of Notice u/s 148 dated 02.06.2021 (Annexure-E) 28 10. Copy of Sale Deed for Property Sale (₹2.51 Cr) (Annexure-F) 29 to 43

11. Copy of Assessee's Reply to Notice u/s 148, dated 24.09.2021 44 requesting Reasons Recorded (Annexure-G)

12. Copy of letter dated 01.06.2022 u/s 148A(b) of the Act 45 to 47 containing the Reasons recorded for reopening of the assessment u/s 147 (Annexure-H)

13. Copy of Submission dated 16.06.2022 (Annexure-I) 48 to 68

14. Copy of Material supplied along-with notice u/s 148A(b) 69 dated 01.06.2022 (Annexure-J)

15. Copy of Order u/s 148A(d) (Annexure-K) 70 to 98 16. Copy of New Notice u/s 148 dated 26.07.2022 (Annexure-L) 99 17. Objections raised by Assessee to Reasons (Annexure-M) 100 to 105 18. Order disposing of objections by AO (Annexure-N) 106 to 109 19. Copy of Show Cause Notice dated 17.05.2023 (Annexure-O) 110 to 117

20. Copies of Assessee’s replies on 19.05.2023 and 23.05.2023 118 to 126 (Annexure-P)

21. Copy of Reassessment Order u/s 147 r.w.s. 144 (Annexure-Q) 127 to 137

22. Copy of Computation Sheet appended to the Re-assessment 138 to 140 Order (Annexure-R)

23. Compilation of Judicial Precedents Relied Upon 141 to 394

24. Supporting Affidavit of the Assessee 395

7. The ld. AR of the assessee in addition to the above written submission so filed vehemently argued that ld. CIT(A) has not decided the technical ground raised by the assessee that the ld. AO has not followed the guidelines as given by the Apex Court and the approval was not properly obtaining before issuing notice u/s. 148 of the Act. and more particularly advanced the similar contentions as stated in the order of the ld. CIT(A). He heavily relied upon the decision of Karnataka High Court in the case of N. Govindaraju Vs. ITO 60 taxmann.com 333 on the validity of the re-opening of the case. In addition to those arguments so advanced by him he filed the following two submission dated 17.07.2025 & 04.08.2025;

17.07.2025 • Facts of the case As mentioned by the assessee in Remarks synopsis of the case The Ld. AR in has submitted that It is pertinent to note that on 3 notices dated 12.12.2017, perusal of the notice dated 19.01.2018 and 30.07.2018 were 19.01.2018 issued by the received from the office of the department to assessee u/s Assistant Director of Income 133(6) of the Act nowhere the Tax/Income Tax office (Hqrs.), amount of transaction has been Intelligence & Criminal mentioned. investigation, Jaipur enquiring about the alleged transaction of On perusal of the reply of the property sale for Rs. 2.51 crores assessee furnished vide letter which was replied vide assessee's dated 15.02.2018 (copy enclosed letter dated 15.02.2018, herewith) the assessee informed 06.06.2018 and 07.09.2018 the department that she has sold respectively. the immovable property situated at Khasra No. 1142,1143,1144,1145 & 1146 Village Parasrampuria, Patwarhalka, Village-Sargoth, Bhuabilekh, Area-Ringas, Tehsil- Srimadhopur, District-Sikar, on 02.07.2015 for a consideration of Rs. 2,50,00,000/- to M/s Shree Kripa Rolling Mills LLP.

It is also pertinent to note that the assessee has not submitted the copy of reply dated 15.02.2018 before the Hon'ble ITAT that was submitted to the department earlier.

The assessee has only submitted the reply dated 06.06.2018 and 07.09.2018 but has not furnished the copy of the reply dated 15.02.2018. It is the In the paper book submitted The assessee has only submitted before the Hon'ble ITAT, the the reply dated 06.06.2018 and assessee has submitted that 07.09.2018 but has not furnished copies of the reply as Annexure D the copy of the reply dated (Page No. 26 and Page 27) which 15.02.2018. It is the letter dated were submitted to the 15.02.2018 wherein the assessee Investigation Wing had admitted to have sold immovable property for which the sale consideration of Rs. 2,50,00,000/- was received by the assessee.

The assessee has also submitted On perusal of the submission it is the computation of income in found that on page no. 11 of the which the assessee has shown sale deed the sale consideration the sale consideration to be has been mentioned as Rs. received as Rs. 2,51,00,000/-, 2,50,00,000/-However, in the The assessee has also furnished computation of income the the copy of sale deed of the assessee has shown the receipt property transaction under of sale consideration as Rs. consideration. 2,51,00,000/-.

The schedule of payment as The assessee had submitted the mentioned on page no 11 of the annexures alongwith the letter sale deed mentions that payment dated 15.02.2018 to the of Rs. 1,00,00,000/-,Rs. department. On verification it is 1,00,00,000/- and Rs. 50,00,000/- found that the payments of Rs.

Vinita Bajoria vs. ITO has been made to the assessee 50,00,000/- (thrice) and Rs. vide cheque no. 630854, 630855 25,00,000/- (twice) has been and 630856 respectively. The received form through RTGS and date of all cheque payment has Rs. 1,00,000/- has been received been mentioned as 01.07.2015 in cash. Hence, the receipt of and the name of the Bank is payment does not match with the Syndicate Bank. schedule of payment mentioned on page no. 11 of the sale deed.

Thus, it is evident from the above that there is discrepancy in the reply furnished by the assessee before the Hon'ble ITAT. • Submission in respect of the change of opinion � In this regard, the reliance is placed on the decision pronounced on 17.04.2015 by the Hon'ble Apex Court in the case of Deputy Commissioner of Income Tax Vs. Zuari Estate Development & Investment Co. Ltd [2015] 63 taxmann.com 77 wherein the following observation was made: “...2. After going through the detailed order passed by the High Court, we find that the main issue which is involved in this case is not at all addressed by the High Court. A contention was taken by the appellant-Department to the effect that since the assessee's return was accepted under Section 143(1) of the Income Tax Act, there was no question of "change of opinion" inasmuch as while accepting the return under the aforesaid provision no opinion was formed and therefore, on this basis, the notice issued was valid. We find that this aspect is squarely covered by the judgment of this Court in Asstt. CIT v. Rajesh Jhaveri Stock Brokers (P.) Ltd. [2007] 291 ITR 500/161 Taxman 316 in the following manner:- "15. In the scheme of things, as noted above, the intimation under Section 143(1)(a) cannot be treated to be an order of assessment. The distinction is also well brought out by the statutory provisions as they stood at different points of time. Under Section 143(1)(a) as it stood prior to 1-4-1989, the assessing officer had to pass an assessment order if he decided to accept the return, but under the amended provision, the requirement of passing of an assessment order has been dispensed with and instead an intimation is required to be sent. Various circulars sent by the Central Board of Direct Taxes spell out the intent of the legislature le to minimise the departmental work to scrutinise each and every return and to concentrate on selective scrutiny of returns. These aspects were highlighted by one of us (D.K. Jain, J.) in Apogee International Ltd. v. Union of India.

Vinita Bajoria vs. ITO 16. It may be noted above that under the first proviso to the newly substituted Section 143(1), with effect from 1-6-1999, except as provided in the provision itself, the acknowledgment of the return shall be deemed to be an intimation under Section 143(1) where (a) either no sum is payable by the assessee, or (b) no refund is due to him. It is significant that the acknowledgment is not done by any assessing officer, but mostly by ministerial staff. Can it be said that any "assessment" is done by them? The reply is an emphatic "no". The intimation under Section 143(1)(a) was deemed to be a notice of demand under Section 156, for the apparent purpose of making machinery provisions relating to recovery of tax applicable. By such application only recovery indicated to be payable in the intimation became permissible. And nothing more can be inferred from the deeming provision. Therefore, there being no assessment under Section 143(1)(a), the question of change of opinion, as contended, does not arise." In view of the above, it is evident that as in the case of assessee the intimation was issued u/s 143(1) of the Act so the issue of "change of opinion" does not arise. No requirement of fresh tangible material for reasons to believe: The Hon'ble High Court of Delhi (copy enclosed herewith) in the case of Indu Lata Rangawala Vs. Deputy Commissioner of Income Tax [2017] 80 taxmann.com 102 has referred to the various judgements of the Hon'ble Apex Court (including CIT v. Kelvinator of India Ltd. [2010] 187 Taxman 312, Dy. CIT v. Zuari Estate Development & Investment Co. Ltd. [2015] 63 taxmann.com 77 and Asstt. CIT v. Rajesh Jhaveri Stock Brokers (P) Ltd. [2007] 161 Taxman 316) and pronounced the decision on 18.05.2016 and a summary of legal position was made part of the said decision (vide para 35.1 to para 35.9 of the decision) which is reproduced as under: "...Summary of the legal position 35.1 The upshot of the above discussion is that where the return initially filed is processed under Section 143 (1) of the Act, and an intimation is sent to an Assessee, it is not an 'assessment in the strict sense of the term for the purposes of Section 147 of the Act. In other words, in such event, there is no occasion for the AO to form an opinion after examining the documents enclosed with the return whether in the form of balance sheet, audited accounts, tax audit report etc. 35.2 The first proviso to Section 147 of the Act applies only (i) where the initial assessment is under Section 143 (3) of the Act and (ii) where such reopening is Vinita Bajoria vs. ITO sought to be done after the expiry of four years from the end of the relevant assessment year. In other words, the requirement in the first proviso to Section 147 of there having to be a failure on the part of the Assessee "to disclose fully and truly all material facts" does not at all apply where the initial return has been processed under Section 143 (1) of the Act. 35.3 As explained in Rajesh Jhaveri Stock Brokers (P.) Ltd. (supra) "an intimation issued under Section 143 (1) can be subjected to proceedings for reopening", "so long as the ingredients of Section 147 are fulfilled". 35.4 Explanation 2 (b) below Section 147 states that for the purposes of Section 147, where a return of income has been furnished by the Assessee but no assessment has been made and it is noticed by the AO that the Assessee has understated the income and claimed excessive loss, deduction, allowance and relief in the return then that "shall also be deemed to be a case where the income chargeable to tax has escaped assessment". 35.5 As explained by the Supreme Court in Rajesh Jhaveri Stock Brokers (P) Ltd. (supra) and reiterated by it in Zuari Estate Development & Investment Co. Ltd. (supra) an intimation under Section 143 (1) (a) cannot be treated to be an order of assessment. There being no assessment under Section 143 (1) (a), the question of change of opinion does not arise. 35.6 Whereas in a case where the initial assessment order is under Section 143 (3), and it is sought to be reopened within four years from the expiry of the relevant assessment year, the AO has to base his 'reasons to believe' that income has escaped assessment on some fresh tangible material that provides the nexus or link to the formation of such belief. In a case where the initial return is processed under Section 143 (1) of the Act and an intimation is sent to the Assessee, the reopening of such assessment no doubt requires the AO to form reasons to believe that income has escaped assessment, but such reasons do not require any fresh tangible material. 35.7 In other words, where reopening is sought of an assessment in a situation where the initial return is processed under Section 143 (1) of the Act, the AO can form reasons to believe that income has escaped assessment by examining the very return and/or the documents accompanying the return. It is not necessary in such a case for the AO to come across some fresh tangible material to form 'reasons to believe' that income has escaped assessment. 35.8 In the assessment proceedings pursuant to such reopening, it will be open to the Assessee to contest the reopening on the ground that there was either no Vinita Bajoria vs. ITO reason to believe or that the alleged reason to believe is not relevant for the formation of the belief that income chargeable to tax has escaped assessment . 35.9 The decisions of this Court and other Courts to the extent inconsistent with the above decisions of the Supreme Court cannot be said to reflect the correct legal position..."

04.08.2025 Annexure A A written submission has been made by the Ld. A/R before the Hon'ble ITAT, Jaipur Bench, Jaipur and the copy of the said submission has also been received in this office on 31.07.2025. Hence, the rejoinder is submitted for the consideration of Hon'ble ITAT, Jaipur Bench, Jaipur.

2. Vide Para 1 of the written submission the assessee has raised a legal ground that the Ld. AO has wrongly passed the Assessment Order u/s 144 of the Income Tax Act, 1961 (hereinafter referred to as "Act"). Further, the Ld. A/R has also submitted himself that the assessee has not taken this ground in her appeal. The Ld. A/R has mentioned the relevant information in the tabular chart to further his argument. Remarks on above contention • In this regard, it is pertinent to note that the legal ground that has been raised vide a written submission was never raised before the Hon'ble ITAT in the grounds of appeal filed by the assessee. Further, as this legal ground was never raised before the Hon'ble ITAT and this ground has been made when the case has already been heard by the Hon'ble ITAT on 21.07.2025 so it is humble submission before your honours that such a legal ground may not be admitted at this point in time. • Without prejudice to the above, the kind attention of Hon'ble ITAT is invited towards the pertinent observation made by the AO on Page 7 of the Assessment Order dated 26.05.2023 passed in the case of assessee and the same is reproduced as under:- "...d. As the assessee has not complied to the notice issued under section 148 of Income-tax Act, 1961 by not making compliance to the notices issued under section 142(1) of the Act, as such the assesseer case will be assessed under Vinita Bajoria vs. ITO section 144 of Income-tax Act, 1961 for non-compliance to the notice/letter Issued..." Further, it is pertinent to note clause (b) of sub-section 1 of section 144 of Act which is reproduced as under:- "...Best judgment assessment. 144. (1) If any person- (a)... (b) fails to comply with all the terms of a notice issued under sub-section (1) of section 142 or fails to comply with a direction issued under sub-section (2A) of that section, or (c)... the Assessing Officer, after taking into account all relevant material which the Assessing Officer has gathered, shall, after giving the assessee an opportunity of being heard, make the assessment of the total income or loss to the best of his judgment and determine the sum payable by the assessee on the basis of such assessment..." Hence, it is evident from the above that the AO has complied with the relevant provisions of the Act that provides for making the best judgement assessment u/s 144 of the Act by categorically providing the reasons for the same in the Assessment Order dated 26.05.2023.

3. Vide Para 2 of written submission the Ld. A/R has submitted a clarification in respect of the value of sale consideration appearing as Rs. 2.50 crore on Page No. 11 of the registered sale deed that forms Annexure F of the Paper Book submitted by the Ld. A/R before the Hon'ble ITAT on 08.07.2025 vis-à-vis the sale consideration of Rs. 2.51 crores appearing in the submission dated 15.02.2018 submitted before the Investigation Wing. Remarks on above contention • In this regard, it is pertinent to note that the assessee in reply to the correspondence dated 01.06.2022, issued subsequent to the decision dated 04.05.2022 of Hon'ble Supreme Court in the case of Union of India & Ors vs. Ashish Agarwal in Civil Appeal No. 3005/2022, did not furnish any such clarification regarding the reason for showing the sale consideration as Rs. 2.51 crore in the computation of income as well as in the ITR vis-à-vis the sale

• In this regard, it is to be noted that when the opportunity to offer an explanation was accorded by the Department to the assessee vide correspondence dated 01.06.2022, the onus was on the assessee to explain the aforesaid discrepancy to the satisfaction of the AO. However, the contention of the assessee regarding the mode of payment of the sale consideration due to the reason that three cheques given by the buyer got dishonored was never presented by the assessee during the course of 148A proceedings before the AO in reply to the correspondence dated 01.06.2022 issued to the assessee. Hence, the argument of the Ld. A/R that this issue was never raised by the Department is not true reflection of the facts of the case when during the proceedings u/s 148A, the assessee actually had the opportunity to submit this fact before the AO concerned. It is also pertinent to note that the argument of dishonoring of cheques was only made by the Id. A/R when the issue of mismatch of the sale consideration mentioned in the sale deed vis-à-vis the sale consideration shown in the computation of income was brought to the notice of Hon'ble ITAT by the Ld. DR. • The above mentioned irrefutable fact clearly suggests that during the course of proceedings u/s 148A of the Act that the complete facts of the transaction amount discrepancy was never submitted by the assessee to the department as the Ld. A/R himself has accepted the fact by saying that this issue was never raised by the department. However, the Ld. A/R has failed to appreciate the principle of natural justice enshrined in clause (b) of section 148A of the Act which is reproduced as under:-

"...Conducting inquiry, providing opportunity before issue of notice under section 148.. 148A. The Assessing Officer shall, before issuing any notice under section 148,- (a) ... (b) provide an opportunity of being heard to the assessee, 1[*] by serving upon him a notice to show cause within such time, as may be specified in the notice, being not less than seven days and but not exceeding thirty days from the date on which such notice is issued, or such time, as may be extended by him on the basis of an application in this behalf, as to why a notice under section 148 should not be issued on the basis of information which suggests that income chargeable to tax has escaped assessment in his case for the relevant assessment year and results of enquiry conducted, if any, as per clause (a);..."

Vinita Bajoria vs. ITO Therefore, the argument of the assessee that the department never asked about this issue of dishonoring of cheques is not correct when the relevant provision of the section 148A of the Act gives ample opportunity to the assessee to submit all the relevant facts to discharge the onus before the competent authority regarding a particular transaction. Further, when the issue of dishonoring of cheques was not brought into notice of the AO during the course of proceedings u/s 148A of the Act, the AO was under legal obligation to consider the material available on record and pass the Order u/s 148A(d) of the Act and notice u/s 148 of the Act. Hence, the proceedings initiated u/s 148A of the Act and notice issued u/s 148 of the Act is not bad in law. • In addition to the above, the argument of the Ld. A/R in submitting before the Hon'ble ITAT that there was no intention of the assessee to not furnish the reply dated 15.02.2018 before the Hon'ble ITAT is not supported by the past act of the assessee during the course of proceedings u/s 148A of the Act. As in respect of the said reply dated 15.02.2018, the Ld. A/R brought this issue to the notice of Hon'ble ITAT only when this undisputed and irrefutable fact of not submitting the said reply before the Hon'ble ITAT was brought to the notice of your honours during the course of hearing on 21.07.2025. • Hence, it is evident from the discussion in the preceding paragraphs that the question raised by the Ld. A/R on the intention of Ld. DR to divert the facts of the case is nothing but a claim without any base and Ld. A/R appears to be not well versed with the statutory provisions of the Act which casts onus on the assessee to provide complete details of the transaction undertaken before the AO when the opportunity of providing the same was available with the assessee in form of reply to the correspondence dated 01.06.2022 issued to the assessee. • Therefore, it is evident that the reopening in the case of assessee was made by the AD as per law and it is humbly submitted that the same may be upheld.

• Also, it is the fact in the case of assessee that prior to the assessment order dated 26.05.2023 no assessment order had been passed in the case of assessee and only intimation u/s 143(1) of the Act had been issued. Hence, the law, as laid down by the Hon'ble Supreme Court of India, vide the aforesaid two judgments is squarely applicable in the case of assessee. • As far as the three case laws viz. Bimla Kumari Lajpatraj Hurra (supra), S.R. Cold Storage (supra) and Smt. Taruna Verma (supra), it is pertinent to note that the reliance on the said case laws is of no help to the assessee for the reason as the crucial information regarding mismatch of the amount of sale consideration in the registered sale deed and that of in the ITR filed by the assessee was never furnished before the AO during the course of proceedings u/s 148A of the Act when the opportunity was granted to the assessee to furnish the reply in response to correspondence letter dated 01.06.2022. Hence, when there was a mismatch of amount, as discussed above, and there was also difference in the mode of payment as mentioned in the registered sale deed vis-à-vis the mode of payment mentioned in reply furnished to the Investigation Wing vide letter dated 15.02.2018, the AO was correct in taking the proceedings u/s 148A of the Act to its logical conclusion and subsequently issuing notice u/s 148 of the Act. • The argument of the Ld. A/R that the case law of Indu Lata Rangwala (supra) is not applicable to the facts of the case of assessee is not the correct appreciation of the fact that vide Para 35.1 to Para 35.9 of the decision of Hon'ble High Court of Delhi pronounced on 18.05.2016 in the said case, the summary of legal principle has been made part of the order. Hence, when the legal principle has been laid down specifically by the Hon'ble High Court of Delhi after considering the decisions of Hon'ble Supreme Court of India in the case of Rajesh Jhaveri Stock Brokers (P) Ltd. (supra) and in the case of Zuari Estate Development & Investment Co. Ltd. (supra), the said legal principle is squarely applicable in the case of assessee as the Ld. A/R has not been able to refute the applicability of the said legal principle in the case of assessee.

6. Vide para 6 of the written submission of the Ld. AR, it has been submitted that the that the reliance placed by the Ld. DR on the case law of N Govindaraju Vs. Income Tax [2015] 60 taxmann.com 333 decided by the Hon'ble Karnataka High Court to argue that for taxing any other income in place of the alleged income on the basis of which the reopening has been done, it is necessary that that the Vinita Bajoria vs. ITO notice u/s 148(2) of the Act must found to be valid and satisfaction of the reasons for the notice should be sufficient. In this regard, the Ld. AR has cited the following reason for the notice issued u/s 148 of the Act to be invalid: • The notice u/s 148 of the Act was issued under wrong facts as the property transaction had been declared in the ITR. • The Ld.AR has submitted that the guidelines of the Hon'ble Supreme Court of India, as laid down in the case of Ashish Agarwal (supra) were not followed. • The Ld. AR has also raised the issue of approval not being taken of the competent authority as per section 151 of the Act. Remarks on the above contention: • The issue of reopening of the assessee on the wrong facts, as argued by the Ld.AR, has been discussed in length earlier in this submission and the same is not being repeated again. The issue of mismatch of sale consideration in registered sale deed with that of in the ITR has been discussed elaborately. • It is submitted that vide correspondence dated 01.06.2022 the details of information in possession of the department was indeed supplied to the assessee. Without prejudice to the above, it was assessee's own submission dated 15.02.2018 made before the investigation wing wherein the assessee had herself stated that it has entered into transaction amounting to Rs. 2.50 crores and the said amount was also reflecting in the registered sale deed. However, neither the schedule of payment nor the amount of payment was matching, as reflecting in the registered sale deed, vis-à- vis that of in the details of payment received by the assessee for the said property transaction (the submission dated 15.02.2018 has been submitted by the Ld.DR before the Hon'ble ITAT during the last hearing in this case and the copy of the sald submission was also given to the Ld. AR). Hence, the said information was already in possession of the assessee so the assessee has not been able to make out a case of information being used behind her back. • In this regard, it is also submitted that no specific ground of appeal in this regard (sanction of competent authority as per section 151 of the Act.) has been made before filing the appeal before the Hon'ble ITAT as the assessee has raised the issue in first ground of appeal that the case of assessee was reopened on wrong facts. This aspect has been discussed at length earlier in this submission that the reopening was done on the basis of correct facts only. • Further, the attention of the Hon'ble ITAT is invited towards the para 3(a) on page no. 6 of the Ld. CIT(A) order dated 09.01.2025 wherein the ground raised by the assessee in respect of the reopening proceedings has not left the attention of the Ld. CIT(A) and this aspect has been duly considered. Thereafter, in para 3(b) of "Powers of the Joint Commissioner (Appeals) or the Commissioner (Appeals).

251. (1) In disposing of an appeal, the Commissioner (Appeals) shall have the following powers- (a) in an appeal against an order of assessment, he may confirm, reduce, enhance or annul the assessment:

Provided that where such appeal is against an order of assessment made under section 144, he may set aside the assessment and refer the case back to the Assessing Officer for making a fresh assessment;"

Therefore, the Ld. CIT(A) has exercised the authority by invoking the above- mentioned proviso (duly highlighted) and set aside the case of assessee & directed the AO concerned to do a fresh assessment after providing a reasonable and fair opportunity of being heard.

• Without prejudice to the above, the assessee also submitted before the Ld. CIT(A) that the assessee has filed the writ petition before the Hon'ble High Court of the Rajasthan against the reopening of assessment and has not furnished submitted before the Hon'ble ITAT that any stay or relief has been obtained in this regard from the Hon'ble High Court of Rajasthan. On verification of the status of the said appeal from the website of the Hon'ble High Court of Rajasthan-High Court Bench at Jaipur it is found that the writ petition is still pending before the Hon’ble High Court. The relevant screenshot (taken on 02.08.2025) highlighting the said fact is as under:-

Since, the assessee has already challenged the issue of reopening of assessment before Hon'ble High Court of Rajasthan and the same is pending till date and during the appellate proceedings before the Ld. CIT(A) the issue has been set aside to the AO for doing fresh assessment, so your honors may consider this matter in the light of the aforesaid facts.

"Whether in the facts and in the circumstances of the case, the Tribunal was justified in holding that the proceedings for reassessment under section 148/147 of the IT Act were initiated by the AO on non-existing facts because ultimately, the assessee has been able to explain that the income which was believed to have escaped assessment was explainable (sic) but some other additions were made under the assessment order?"

Vinita Bajoria vs. ITO Therefore, it is evident from the above that the issue involved in the said case that was adjudicated upon was that the case of assessee was reopened on the basis of non-existent fact. • As evident in this submission, it has been discussed in detail that there existed material facts on record on the basis of which the reopening was made in the case of assessee. Hence, once it is demonstrated without an iota of doubt that the case of the assessee was reopened on the basis of correct fact and the said facts were not rebutted by the assessee when opportunity was granted to the assessee vide correspondence dated 01.06.2022 then the case law relied upon by the Ld. A/R is of no help to the assessee. • It is also brought to the notice of your honors that the attention on this aspect was also invited during the course of last hearing in the case of assessee. • The other case laws relied upon by the assessee are distinguishable on facts and the same are discussed as under: -It is pertinent to note that the case relied upon by the Ld. A/R was reopened as per the provisions of Act before amendment made vide Finance Act 2022. Vide Finance Act 2022 the provisions of reopening of assessment have changed. -In the case laws relied upon by the Ld. A/R, in the reasons of reopening it was mentioned that the assessee has not filed the return of income whereas in the final assessment order it was mentioned that the assessee had filed the return of income for the relevant assessement year. This is a distinguishing fact. -The Ld. A/R has not appreciated the fact that in the case of assessee there was mismatch of the amount of sale consideration appearing in the registered sale deed with that of the amount of sale consideration actually received. Further, in the ITR filed for the relevant assessment year the value of amount mentioned in the registered sale deed was not appearing. Further, during the course of proceedings u/s 148A of the Act, the assessee never furnished any explanation regarding the said mismatch of amount and, in fact, it was furnished to the Hon'ble ITAT for the first time when the issue was brought to the notice by the Ld. DR before the Hon'ble ITAT. -The facts of the case laws relied upon by the Ld. A/R are completely different than that of assessee's case.

Record also reveals that thereafter an order u/s. 148A(d) was passed as consequence to the order of Rajeev Bansal case (Supra) on 28.07.2022.

After that a notice dated 26.07.2022 was issued u/s. 148 of the Act [ new regime ] after obtaining the approval of PCIT-2, Jaipur. Thus, the notice under section 148 of the Act [ under new regime ] was issued after the expiry of 3 years from the end of the relevant assessment year. Thus, before we proceed further it would be appropriate to deal with the aforesaid land mark judgment of the apex court in the case of UOI Vs. Rajeev Bansal (Supra) wherein the apex court has observed as under : b. Interplay of Ashish Agarwal with TOLA 108. The Income-tax Act read with TOLA extended the time limit for issuing reassessment notices under section 148, which fell for completion from 20 March 2020 to 31 March 2021, till 30 June 2021. All the reassessment notices under challenge in the present appeals were issued from 1 April 2021 to 30 June 2021 under the old regime. Ashish Agarwal (supra) deemed these reassessment notices under the old regime as show cause notices under the new regime with effect from the date of issuance of the reassessment notices. The effect of creating the legal fiction is that this Court has to imagine as real all the consequences and incidents Vinita Bajoria vs. ITO that will inevitably flow from the fiction. East End Dwellings Co. Ltd. v. Finsbury Borough Council [1952] AC 109. [Lord Asquith, in his concurring opinion, observed: "If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it."] Therefore, the logical effect of the creation of the legal fiction by Ashish Agarwal (supra) is that the time surviving under the Income-tax Act read with TOLA will be available to the Revenue to complete the remaining proceedings in furtherance of the deemed notices, including issuance of reassessment notices under section 148 of the new regime. The surviving or balance time limit can be calculated by computing the number of days between the date of issuance of the deemed notice and 30 June 2021.

The bench thus noted that in the case on hand notice u/s. 148 of the Act (old regime) was issued on 02.06.2021 and was deemed to be notice issued u/s. 148A(b) of the Act (new regime). Thus, the surviving time limit can be calculated by computing the number of days between the date of issuance of the deemed notice (i.e. 02.06.2021) and 30.06.2021, which come to 28 days. The clock started ticking only after Revenue received the response of the Assesses to the show causes notices on 13/06/2022. Once the clock started ticking, the Assessing officer was required to complete these procedures within the surviving time limit of 28 days which expired on 11/07/2022. Since notice under Section 148 of the Act was issued on 26/07/2022 which fell beyond the surviving time limit that expired on 11/07/2022, the said notice issued under Section 148 of the Act is time barred and therefore, bad in law. Therefore, notice, dated 26/07/2022, issued under Section 148 of the Act (new regime), the consequential reassessment proceedings and the Assessment Order, dated 26.05.2023, passed under Section 147 read with Section 144B of the Act are quashed. time limit for issuance of notice was not expired in this case being A. Y.

2016-17 the notice issued u/s. 148 dated 26.07.2022 [ as is issued after 3 years ] required sanction of the PCCIT but the same is issued with the sanction of PCIT-2,Jaipur and thus, notice issued u/s.148 after lapse of 3 years is bad in law, since the same has been issued without obtaining the approval from Specified authority viz. Pr. CCIT prescribed u/s.151(ii), thereby violating the law settled by Hon'ble Apex Court in the case of UOL vs. Rajeev Bansal (167 taxmann.com 70). Thus, the bench noted that on the identical facts the co ordinate bench of ITAT Mumbai in has decided the issue raised by the assessee as to acquiring the jurisdiction to issue notice u/s. 148 without proper approval and thereby having similar fact the assessment was quashed and in that the co-ordinate Mumbai bench has given the following finding;

Vinita Bajoria vs. ITO All notices issued beyond the surviving period are time barred and liable to be set aside. Hon'ble Court had elaborately dealt with this issue in Part E of its decision in para 73 to 78 which are extracted below: 73. Section 151 imposes a check upon the power of the Revenue to reopen assessments. The provision imposes a responsibility on the Revenue to ensure that it obtains the sanction of the specified authority before issuing a notice under Section 148. The purpose behind this procedural check is to save the assessees from harassment resulting from the mechanical reopening of assessments. 128 A table representing the prescription under the old and new regime is set out below:

Vinita Bajoria vs. ITO 78. For example, the three years time limit for assessment year 2017-2018 falls for completion on 31 March 2021. It falls during the time period of 20 March 2020 and 31 March 2021, contemplated under Section 3(1) of TOLA Resultantly, the authority specified under Section 151(i) of the new regime cun grant sanction till 30 June 2021......

Vinita Bajoria vs. ITO 8.2. Taking into consideration the submissions made by the Id. Sr. DR and keeping the same in juxtaposition with the above observations and findings of the Hon'ble Court, we note that the issue we are presently addressing raised before us is not on the aspect of "when" for the procedural compliance for issuance of notice u/s.148 but on the aspect of "by whom" it ought to have been issued. Ld. Sr. DR has contended that there is hierarchical escalation vis-à-vis obtaining approval for issuing notice u/s.

148. In this respect, Hon'ble Court has very categorically held in para 75 that the prior approval must be obtained from the appropriate authorities specified u/s.151 of the new regime for the notices issued in terms of Ashish Agrawal (supra) after 01.04.2021. Reference by ld. Sr. DR to Section 149(1)(a) deals with time limit for issuing notice u/s.

that has been decided by the co-ordinate bench of Mumbai wherein the bench has in detailed examined the issue and held that the since the approval was not properly obtained and that being the case of the present assessee. Thus, on being consistent with the above order we quash the notice issued u/s. 148 as bad in law and thereby the consequential assessment as bad in law and thereby quash the same by allowing ground no. 2 raised by the assessee.

Since we have considered ground no. 2 being technical ground no 1 being the merits of the dispute becomes academic and therefore, the same is not decided.

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

Order pronounced in the open court on 09/09/2025.

Sd/- Sd/- ¼ Mk0 ,l- lhrky{eh ½ ¼ jkBksM deys'k t;UrHkkbZ ½ (Dr. S. Seethalakshmi) (Rathod Kamlesh Jayantbhai) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 09/09/2025 *Ganesh Kumar, Sr. PS आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू Vinita Bajoria vs. ITO 1. The Appellant- Vinita Bajoria, Jaipur izR;FkhZ@ The Respondent- Income-tax Officer, Ward 5(2), Jaipur 2. 3. vk;dj vk;qDr@ The ld CIT 4. vk;dj vk;qDr¼vihy½@The ld CIT(A) 5. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 6. xkMZ QkbZy@ Guard File (ITA No. 370/JP/2025) vkns'kkuqlkj@ By order,

सहायक पंजीकार@Aेेज. त्महपेजतंत