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Facts
The assessee failed to file its income tax return for AY 2016-17. The AO initiated reassessment proceedings under Section 147 based on information regarding sale of land and capital gains. The AO made an addition of Rs. 6,33,60,000/-. The assessee's appeal before the CIT(A) was dismissed.
Held
The Tribunal held that the reopening proceedings initiated under Section 147/148 were invalid because the approval granted by the approving authority lacked due application of mind and was mechanical. The Tribunal quashed the reopening proceedings.
Key Issues
Whether the reopening proceedings under Section 147/148 of the Income Tax Act, 1961, were validly initiated without proper application of mind by the approving authority.
Sections Cited
147, 148, 151, 144, 271(1)(c), 253(5), 139(1)
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Income Tax Appellate Tribunal, JAIPUR BENCHES,”A” JAIPUR
Before: DR. S. SEETHALAKSHMI, JM & SHRI GAGAN GOYAL, AM vk;dj vihy la-@ITA No. 1207/JPR/2024
fu/kZkj.k o"kZ@Assessment Year :2016-17. Sanjivani Shikshan Sansthan cuke The ITO, Vs. M-28, Income Tax Colony, Ward -6(3), Tonk Road, jaipur. Jaipur. LFkk;hys[kk la-@thvkbZvkj la-@PAN/GIR No. AACAS9956L vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@Assessee by :Shri Rahoan Sogani, C.A. jktLo dh vksj ls@Revenue by : Shri Arvind Kumar, CIT-DR & Mrs. Anita Rinesh, JCIT-DR lquokbZ dh rkjh[k@Date of Hearing: 11/03/2025 ?kks"k.kk dh rkjh[k@Date of Pronouncement: 22/04/2025 vkns'k@ORDER PER DR. S. SEETHALAKSHMI, J.M. This is an appeal filed by the assessee against the order of ld. CIT(A), National Faceless Appeal Centre (NFAC) Delhi dated 03.07.2024 passed under section 250 of the I.T. Act, 1961, for the assessment year 2016-17. The assessee has raised the following grounds of appeal :-
1. In the facts and circumstances of the case and in law, Id. CIT(A) has erred in, confirming the action of the Id. AO, in reopening the case of the assessee u/s 147 of the Income Tax Act, 1961. The action of the Id. CIT(A) is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by quashing the re-assessment order passed by the Id. AO being illegal and without jurisdiction.
Sanjivani Shikshan Sansthan, Jaipur.
2. In the facts and circumstances of the case and in law, Id. CIT(A) has erred in confirming the action of Id. AO, in concluding the assessment u/s 144 of the Income Tax Act, 1961. The action of the Id. CIT(A) is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by quashing the re-assessment order passed by the Id. AO being illegal and passed without providing opportunity of being heard to the assessee.
3. In the facts and circumstances of the case and in law, Id. CIT(A) has erred in confirming the action of Id. AO, in issuing notice u/s 148 of Income Tax Act, 1961 without obtaining proper sanction u/s 151 of the Income Tax Act, 1961. The action of the Id. CIT(A) is illegal, unjustified. arbitrary and against the facts of the case. Relief may please be granted by quashing the re-assessment order passed by the Id. AO being illegal and without jurisdiction.
4. In the facts and circumstances of the case and in law, Id CIT(A) has erred in confirming the action of Id. AO, in making addition of Rs.6,33,60,000 to the income of the assessee. The action of the Id. CIT(A) is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by deleting the entire addition made by ld. AO and confirmed by Id. CIT(A).
5. The assessee craves its rights to add, amend or later any of the grounds on or before the hearing.” 2.1 At the outset of hearing, the Bench observed that there is delay of 23 days in filing of the appeal by the assessee for which the ld. AR of the assessee filed application for condonation of delay with following prayers and the assessee to this effect also filed an affidavit :-
“I, RAM PRASAD JAT, hereby confirm that I was in receipt of the signed appeal documents from the aforementioned assessee for the captioned assessment year. The said documents were received for filing the appeal before the Hon'ble ITAT, Jaipur Bench, Jaipur. The appeal was required to be filed before the Hon'ble ITAT, on or before 01.09.2024, being within 60 days from the date of passing of the order. However, the present appeal has been filed by me on 23-01-2024, with the delay of 22 days.
In this regard below mentioned submissions, may please be considered: - Sanjivani Shikshan Sansthan, Jaipur.
1. The assessee had duly submitted all the required documents, including the appeal set, as evidenced by the challan of Rs. 10,000 deposited by the assessee on 23.08.2024. However, due to an inadvertent and oversight on my part, I was unable to file the appeal papers within the prescribed time frame 2. While organizing and reconciling the paperwork on my desk, I recently discovered the appeal papers handed over by the assessee. I recalled that although the appeal set was received from the assessee on ......, an oversight caused me to fail in filing the appeal within the stipulated time. This delay was purely unintentional and resulted from other matters being handled at the time. It is important to emphasize that the delay is not due to any mala fide intention or deliberate negligence, but rather a genuine error.
3. The delay in filing the appeal is not attributable to any fault or negligence on the part of the assessee. I, being in charge of the appeal process at the office premises, inadvertently overlooked the matter, resulting in the appeal not being filed within the stipulated time. Consequently, the presentapplication for condonation of delay is being submitted to rectify this oversight, which is supported by my affidavit.
4. That subsequently, I filed the appeal before the Hon'ble bench, resulting in a delay of 22 days in filing the appeal. Delay in filing the appeal was neither intentional nor due to any negligence or mala fide intention on my part but was caused due to the reasons mentioned above, which were beyond my control. As per the provisions of Section 253(5) of the ITA, if there is sufficient cause for delay in filing of appeal, Hon'ble ITAT may condone such delay. It is submitted that the delay was not deliberate. In view of above, it is humbly prayed that delay in filing of appeal may please be condoned. Reliance is placed on the following judicial pronouncement of the Hon'ble Supreme Court: Collector, Land Acquisition vs. Mst. Katiji [1987] 167 ITR 471 "The legislature has conferred the power to condone delay by enacting S.5 of the Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on "merits". The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the end of justice that being the life-purpose of the existence of the institution of courts." In view of above, a very humble prayer is made for condoning the delay.”
Sanjivani Shikshan Sansthan, Jaipur. In support of the contentions so raised the Authorised person has filed an affidavit to support the contentions raised in the prayer for condonation of delay in filing the appeal.
2.2 The ld. AR of the assessee appearing in this appeal submitted that the assessee is serious on the duties and the delay of 23 days is an inadvertent and oversight on my part resulted in delay. Considering the decision of the apex court in the case of Collector, Land & Acquisition Vs. Mst. Katiji& Others 167 ITR 471(SC) wherein it was directed the other courts to consider the liberal approach in deciding the petition for condonation as the assessee is not going to achieve any benefit for the delay in fact the assessee is at risk. 2.3. During the course of hearing, the ld. DR objected to assessee’s application for condonation of delay and prayed that Court may decide the issue as deem fit and proper in the interest of justice.
2.4 We have heard both the parties and perused the materials available on record. The Bench noted that the reasons advanced by assessee for condonation of delay of 23 days are sufficient to condone the delay which has merit. Thus, we concur with the submission of the assessee and condone the delay of 23 days in filing the appeal by the assessee in view of the decision of Hon’ble Supreme Court
The brief facts of the case are that the assesseehas not filed its Income Tax return. Information was received form DCIT, Central Circle-2, Jaipur vide letter no. 1231 dated 02.08.2019 through the ITO(Exemption), Ward-1, Jaipur vide letter no. 978 dt. 05.02.2020 that M/s Sanjeevani Shikshan Sansthan converted land and sold to M/s Nawal Bana Entertainment LLP for sale consideration of Rs. 6,33,60,000/-, Capital gain earned of Rs. 63360000/- as cost of acquisition taken at rupees NIL because the transaction is not a genuine and cost of acquisition in the hands of society is remained unexplained, M/s Sanjeevani Shikshan Sansthan has earned Long term Capital gain on sale of land situated at Gunwata amounting to Rs. 6,33,60,000 in F.Y 2015-16 but it does not file any return of income for A.Y. 2016-17. Thus the assessee has failed to disclose true and fully material necessary for assessment. Therefore it is a fit case for initiation of assessment proceeding for escapement of income by the assessee. Thus, I have reason to believe that that income of Rs.6,33,60,000/-has escaped assessment within the meaning of Section 147 of the Income-tax act 1961 in the case of the above mentioned assessee with others. Notice under section 148 of the Income Tax Act, 1961 was issued on 31.03.2021. But the assessee did not file income tax return against the notice u/s Sanjivani Shikshan Sansthan, Jaipur. 148 or make any compliance. Further, notices u/s 142(1) along with detailed questionnaires were issued on 21.06.2021, 18.11.2021, 27.11.2021 & 20.12.2021 which were duly served upon the assessee on his registered email ID. But no compliance was made by the assessee. During the course of assessment, assessee was required to furnish reply. 3.1 The ld. AO noted that the assessee did not make any response to notices sent through ITBA, therefore, a notice dated 09.12.2021 was again sent to assessee vide speed post, which was also duly served as per the tracking report. But again assessee did not submit any reply/response.Since the assessee has not replied anything to this office, the assessment is now being completed on the basis of information available on record, in accordance with section 144 of the Income Tax Act, 1961. 3.2 Accordingly, a show cause notice along with "Draft Assessment Order" issued to assessee on 11.02.2022 to provide one more opportunity for furnishing any explanation in this case, fixing the date of compliance on or before 17.02.2022. However, assessee did not respond to show cause notice. From perusal of the case record, it is noted that even after so many opportunities; neither the assessee has filed income tax return in response of notice u/s 148 of the IT. Act, 1961 nor submitted any relevant documentary evidence or reply. The assessee has failed to furnish details & documents regarding Capital Gain Income arise on sale of an Sanjivani Shikshan Sansthan, Jaipur. immovable property amounting to Rs. 6,33,60,000/- during the F.Y. 2015-16. In absence of any compliance on the part of the assessee as well as information regarding cost of acquisition of the sold immovable property, the indexed cost of acquisition of the property is being taken at 'nil'. Further, the year of acquisition of the said immovable property is not available on record. Therefore, this income is calculated under Short Term Capital Gain amounting to Rs.6,33,60,000/- and added to the income of the assessee for the assessment year under consideration. Since, the assessee has concealed his income, therefore, penalty proceedings u/s 271(1)(c) are also being initiated separately.
4. Aggrieved by the above order of the Assessing Officer the assessee preferred an appeal before the ld. CIT(A). After perusing the submissions of the assessee, the ld. CIT(A) has dismissed the appeal of the assessee. The relevant finding of the ld. CIT(A) is as under:-
“5.3 a) During the appellate proceedings, the appellant has filed reply vide letter dated 27.05.2024 in which the appellant has filed written submission only contesting the issues on jurisdictional grounds. The appellant has contested the reopening of the case u/s 147 of the Act. The case of the appellant was reopened u/s 147 of the Act on the basis of the information held with the department that the appellant M/s Sanjivani Shikshan Sansthan converted land and sold to M/s Nawal Bana Entertainment LLP for sale consideration of Rs. 6,33,60,000/-, Further, it is to mention that the appellant has not filed ITR u/s 139(1) of Act for the A.Y. 2016-17. Since, the appellant has entered into transaction of sale of property and has not filed original ITR and not shown any capital gain thereon, hence, the AO has recorded reason to believe that the appellant has escaped income. Subsequently, Sanjivani Shikshan Sansthan, Jaipur. after taking the necessary approval, the appellant has been issued notice u/s 148 of the Act to file return of income for the A.Y. 2016-17, however, the appellant has not filed any ITR. b) During the time of assessment proceedings, the appellant has been provided ample opportunities to file its submission in support of sale of land, however, the appellant has not filed any submission. Since, the appellant was non responsive at the time of assessment proceedings, the assessment order has been passed ex-parte after making after making addition on account of Short-Term Capital Gain amounting to Rs 6,33,60,000/- taking cost of acquisition at Rs. Nil c) Further, during the appellate proceedings, the appellant has not provided any supporting documents/evidences in support of sale of land and cost of acquisition. Hence, the appellant is unable to substantiate his claim. d) As noticed from the assessment order ample opportunities had been provided to the assessee to provide details of sale of land and capital gain earned thereon. Moreover, the AO has appropriately explained the reasonings behind additions made. After following the due procedure, the AO issued notice u/s 148 of the Act and completed the assessment providing sufficient opportunities to the appellant. I don't find any infirmity in the order of the AO. e) in these facts and circumstances, I am constrained to be in agreement with the findings of the Assessing Officer and hold that the appellant is unable to substantiate its claims and is not able to controvert the assessment order. The addition made by the Assessing Officer is therefore confirmed. 5.4 The appellant has not been able to defend the grounds raised grounds raised are rejected.
6. In the result, the appeal is dismissed.”
The Ld. AR of the assessee placed on record a Paper Book comprising Pages 1 to 11, which contains the documents forming part of the assessment records relating to the reopening proceedings under Section 147 of the Act. Ld. AR invited our attention to the approval obtained by the AO for reopening the assessment for Sanjivani Shikshan Sansthan, Jaipur. the year under consideration under Section 151. It was submitted that the approval was granted in a mechanical manner and without application of mind by the approving authority. The Ld. AR drew our attention to the proposal sent by the AO to the approving authority, i.e., the Joint Commissioner of Income Tax, Range-6, Jaipur, wherein, the proposal for reopening was submitted in respect of 14 assessees, including the present assessee. The proposal was sent on 31.03.2021 and on the very same date, i.e., 31.03.2021, approval was granted by the approving authority under Section 151 for all 14 cases, including that for the present assessee.
It was further pointed out by the ld. AR that the approval granted under Section 151 did not bear any physical signature of the Approving Authority, i.e., the Joint Commissioner of Income Tax Range-6, Jaipur. Even the online approval, as obtained on the departmental portal, merely reflected the status as "approved" without any detailed reasoning or satisfaction being recorded by the approving authority.
Further the Ld. AR contended that the entire process of seeking and granting approval, as well as issuance of notice under Section 148, was completed within a span of less than 12 hours on the same working day, which indicates mechanical approval without due application of mind. It was further submitted that the approval granted did not contain any specific observation or reasoning to Thus, it was submitted by the ld. AR of the assessee that merely mentioning "approved" does not constitute proper approval under the law. Accordingly, such approval, having been recorded without application of mind, amounts to approval granted in a mechanical manner. Ld. AR further emphasized that, considering the detailed aspects and submissions made by him, the purported approval evidently lacked the necessary deliberation and consideration required by law, thus reinforcing the contention that the approval was granted mechanically and without proper application of mind.
8. To support the contention ld. AR of the assessee also filed a detailed paper book in support of the contention the index of the document submitted reads as under:-
S. No. Particulars Page No.
1. Copy of form for recording the reasons for initiating proceedings under 1-3 section 148.
Copy of letter of proposal for issue of notice under section 148 by Ld. 4.-5 AO to JCIT, Rajge-6, Jaipur dated 31.03.2021 for seeking approval under section151.
3. Copy of letter of granting the required approval for issue of notice under 6-7 section 148 by JCIT, Rajge-6, jaipur to Ld. AO dated 31.03.2021.
Copy of approval under section 151 dated 31.03.2021. 8-10 5. Copy of notice under section 148 dated 31.03.2021. 11 Sanjivani Shikshan Sansthan, Jaipur. 8.1 To support the various grounds so raised by the ld. AR of the assessee and has also relied upon the following case laws in support of the contentions so raised:-
S. No. Particulars Page No.
Copy of the order of Hon’ble Supreme Court in the case of S. Goyanka 1 Lime & Chemical Ltd, (2015) 64 taxmann.com 313 (SC) 2. Copy of the order of Hon’ble High Court of Madhya Pradesh in the case 2-3 of S. Goyanka Lime & Chemical Ltd., (2015) 56 taxmann.com 390 (M.P.) 3. Copy of the order of Hon’ble High Court of Delhi in the case of Capital 4-10 Broadways (P.) Ltd., (2024) 167 taxmann.com 533 (Delhi) 4. Copy of the order of Hon’ble High Court of Bombay in the casde of 11-14 Svitzer Hazira Pvt. Ltd., Writ petition No. 3554 of 2019 5. Copy of the order of Hon’ble High Court of Allahabad in the case of 15-28 Vikas Gupta, (2022) 142 taxman.com 253 (Allahabad.
The ld. AR of the assessee contended that in the cited cases, the Hon'ble Courts have questioned and subsequently set aside the proceedings conducted by the AO, primarily on the grounds that the approving authority had not recorded proper satisfaction and had instead recorded such satisfaction in a mechanical manner.
Per contra, ld. DR relied upon the order of the ld. CIT(E) and the ld. DR opposed the submissions made by the ld. AR of the assessee and contended that the process of seeking and granting approval does not take place on a single day and usually spans over a period of time. Accordingly, the ld. DR submitted that the case laws relied upon by the assessee are not applicable to the facts of the present case.
Sanjivani Shikshan Sansthan, Jaipur.
We have heard the rival submissions and perused the material available on record including the Paper Book filed by the assessee and the compilation of judicial precedents relied upon by the ld. AR of the assessee. It is evident from the record that the proposal for reopening was sent by the AO on 31.03.2021, approval was granted by the approving authority on the same date, and notice under Section 148 was also issued on the very same day. From the documents forming part of the approval process, it is apparent that no proper satisfaction or reasoning has been recorded by the approving authority while granting approval under Section 151.In the approval accorded by the approving authority, namely, the Joint Commissioner of Income Tax, Range-6, Jaipur, only the word "approved" has been mentioned, without any further elaboration or indication of reasons.
We have carefully reviewed the decisions relied upon by the ld. AR of the assessee in the case of S. Goyanka Lime & Chemicals Ltd. [2015] 56 taxmann.com 390 (Madhya Pradesh) it was held that “7. We have considered the rival contentions and we find that while according sanction, the Joint Commissioner, Income Tax has only recorded so "Yes, I am satisfied". In the case of Arjun Singh (supra), the same question has been considered by a Coordinate Bench of this Court and the following principles are laid down:— 'The Commissioner acted, of course, mechanically in order to discharge his statutory obligation properly in the Sanjivani Shikshan Sansthan, Jaipur. matter of recording sanction as he merely wrote on the format "Yes, I am satisfied" which indicates as if he was to sign only on the dotted line. Even otherwise also, the exercise is shown to have been performed in less than 24 hours of time which also goes to indicate that the Commissioner did not apply his mind at all while granting sanction. The satisfaction has to be with objectivity on objective material.
If the case in hand is analysed on the basis of the aforesaid principle, the mechanical way of recording satisfaction by the Joint Commissioner, which accords sanction for issuing notice under section 148, is clearly unsustainable and we find that on such consideration both the appellate authorities have interfered into the matter. In doing so, no error has been committed warranting reconsideration”
The aforementioned decision of Hon’ble Madhya Pradesh High Court was subsequently upheld by the Hon’ble Supreme Court in [2015] 64 taxmann.com 313 (SC). Additionally, we have also gone decisions of Hon’ble Dehli High Court in the case of Capital Broadways (P.) Ltd. [2024] 167 taxmann.com 533 (Delhi), of Hon’ble Bombay High Court in the case of Svitzer Hazira Pvt. Ltd. [2022] 441 ITR 19 (Bom) and of Hon’ble Allahabad High Court Vikas Gupta [2022] 142 taxmann.com 253 (Allahabad). Upon careful consideration of the judicial precedents, it is consistently held by the Hon'ble High Courts that where the Sanjivani Shikshan Sansthan, Jaipur. approving authority has granted approval merely by appending expressions such as “Yes, I am satisfied,” without recording proper reasons to substantiate such satisfaction, the approval is considered to have been granted mechanically and without due application of mind, as mandated by law.
In the instant case, after examining the approval granted by the Joint Commissioner of Income Tax, Range-6, Jaipur, we observe that the approving authority has simply recorded "approved" in the online workflow, without detailing any rationale or providing any reasoning for the reopening of the assessment. Moreover, the approval was sought and granted within an extremely brief span, further indicating a mechanical approach rather than genuine application of mind.
Considering the principles established by the aforementioned judicial precedents, we find the present matter is squarely covered by these decisions. Consequently, in our opinion, the approval accorded by the approving authority in this matter lacks the requisite independent application of mind and, therefore, cannot be considered valid. Also, ld. DR has not been able to bring on record any evidence to substantiate those deliberations regarding such approval were ongoing between the AO and the concerned approving authority over a reasonable period of time, rather than being completed mechanically within a single day.
Sanjivani Shikshan Sansthan, Jaipur. Accordingly, we hold that the assumption of jurisdiction under section 147/148 of the Act in the present case is invalid in the eyes of law and the reopening is vitiated.
In view of the above, the grounds raised by the assessee challenging the reopening of the assessment initiated by the AO are hereby allowed, and consequently, the reopening proceedings are hereby quashed. The assessee has also raised Grounds No. 2 and 3 concerning the merits of the case; however, since we have already decided the legal issue in favour of the assessee by quashing the reopening itself, we do not deem it necessary to adjudicate upon the remaining grounds on merits.
In the result, the appeal of the assessee is partly allowed.
Order pronounced in the open court on 22/04/2025.