MAHENDRA SHARMA,JAIPUR vs. ITO, WARD-3(1), JAIPUR

ORDER \n\nPER DR. S. SEETHALAKSHMI, J.M.\n\nThe present appeal has been filed by the assessee against the order of ld. CIT\n(Appeals), National Faceless Appeal Centre (NFAC), Delhi dated 30.09.2023\npassed under section 250 of the I.T. Act, 1961, for the assessment year 2011-12.\nThe assessee has raised the following grounds of appeal :-\n\n2\nITA No. 654/JPR/2023\nMahendra Sharma vs. ITO .\n\n1. The Reasons for Reopening of the assessment not valid:\nThat the learned Authorities below have grossly erred in law and facts in where the\nassessee has already made a full and true disclosure of all the relevant materials in the\nfirst instance when the original assessment was framed reasons for reopening fail to\nmention which material was failed to be disclosed by the assessee. It cannot be said\nthat there was any failure on the party of the assessee to disclose truly and fully all the\nmaterial facts necessary for assessment. There is no finding of concealed income. The\nreopening is based on third party statement (No evidentiary value).\n\n2. Assumption of Jurisdiction on Presumption :\nThat the learned Authorities below have grossly erred in law and facts in upholding\nthe assumption of jurisdiction for re-assessment. The re-assessment proceedings in\nthis case were only based on presumption/suspicion and were thus not validly\ninitiated.\n\n3. Re-assessment is based on borrowed satisfaction :\nThat the learned Authorities below have grossly erred in law and facts in issuing\nnotice u/s 148 on the basis of AIR information in respect of cash deposit in bank\naccounts and without verifying the correctness of the information and therefore re-\nassessment proceeding is absolutely bad in law and without jurisdiction and further\nAO not recorded his satisfaction and re-assessment is based on borrowed satisfaction\nwhich was not sufficient to confer power on the AO to initiate reassessment\nproceedings against the assessee. CIT vs. Shree Rajasthan Syntex Ltd. (2009) 313\nITR 231 (Raj.). SLP dismissed (20090 313 ITR (St.)27 (SC) – Sun Pharmaceutical\nIndustries Ltd. vs. Dy. CIT (2016) 287 CTR (Del.) 621.\n\n4. Sanction u/s 151 Not Obtained :\nThat the learned Authorities below have grossly erred in law and facts in not taking\nthe sanction u/s 151 of the IT Act before issue of notice u/s 148 from the Joint\nCommissioner of Income Tax and sanction ought not to be mechanical and\nsanctioning authority did apply his mind. Even the ld.AO has not provided sanction\norder in spite of many request.\n\n5. Objection Not Disposed by Order :\n(a) That the learned Authorities below have grossly erred in law and facts in whether the\nAO was required to dispose off the objections filed by the assessee against the\nreasons recorded by him before he start the assessment proceedings as per law\nseparately by an speaking order.\n\n3\nITA No. 654/JPR/2023\nMahendra Sharma vs. ITO .\n\n(b) That the learned Authorities below have grossly erred in law and facts in whether\nhaving acquiesced and participating in the assessment proceedings by the assessee, is\ntoo late for the appellant to argue that non disposal of the objections was a fatal flaw\nvitiating the order passed by AO. M/s. K.C. Mercantile vs. CIT Circle-2, Jaipur (DB\nAppeal No. 292/2016).\n\n6. Re-assessment can be by the Original AO : That the learned Authorities below\nhave grossly erred in law and facts in making the reassessment u/s 147/148 without\njurisdiction because reassessment can be made by the assessing officer who made the\noriginal assessment. Dushyant Kumar Jain vs. CIT (2016) 237 Taxman 646\n(Delhi)(HC).\n\n7. Notice u/s 143(2) not issue :\nThat the learned Authorities below have grossly erred in law and facts in where a pre-\ncondition for passing an order u/s 143(3) is the service of a notice u/s 143(2). It is\nbased on the rule of “Audi alteram partem” i.e. no man should be condemned\nunheard. Hence, if the return filed by an assessee is not accepted the AO shall issue a\nnotice u/s 143(2). No such notice was issued and therefore order is bad. ACIT vs.\nHotel Blue Moon (2010) 321 ITR 362 (SC).\n\n8. Addition u/s 68 : (a) That the learned Authorities below have grossly erred in law\nand facts in invoking section 68 without jurisdiction and per- sea illegal because this\nsection can be invoke where any sum is found credited in the books of an assessee\nmaintained for the any previous year, and the assessee offers no explanation. (b) That\nthe learned Authorities below have grossly erred in law and facts making addition of\nRs.93,42,332/- on account of LTCG without any conclusive evidence/material on\nrecord. Addition is based on no evidence. The assessee has furnished all possible\nevidence. The profit of share business is exempted u/s 10(38).\n\n9. Addition u/s 69C : That the learned Authorities below have grossly erred in law and\nfacts making addition of Rs.5,76,262/- on account of commission @ 6% of LTCG on\nsale value of shares of M/s. Shree Nath Commercial & Finance Ltd. without any\nconclusive evidence/material on record. Addition is based on no evidence. The\nassessee has furnished all possible evidence.\n\n10. No Opportunity of Effective Hearing : That the learned Authorities below have\ngrossly erred in law and facts in not providing adequate opportunity of hearing to the\nappellant and not appreciating replies and evidences of the assessee.\n\n4\nITA No. 654/JPR/2023\nMahendra Sharma vs. ITO .\n\n11. No Show Cause Notice : That the learned Authorities below have grossly erred in\nlaw and facts making disputed additions without serving show cause notice which is\nmandatory as per CBDT circular.\n\nGround nos.1 to 7raised by the assesseeare legal issue relating to action under\nsection 147 r.w.s.148 of the IT Act, 1961. We, therefore, for the sake of\nconvenience first take up these legal issues for adjudication.\n\n2.\nThe brief facts of the case are that the assessee is a regular Income-tax\nassessee. For the year under consideration, the assessee e-filed his income-tax\nreturn on 29.07.2011 declaring a total income of Rs.1,47,600/-. In this case\nproceedings under section 147 of the IT Act, 1961 was initiated. Accordingly,\nnotice under section 148 of Act was issued on 28.09.2016, which was served upon\nthe assessee on 30.09.2016. In response this notice, the ld. A/R of the assessee\nattended and filed his written reply on 17.10.2016 stating that the reasons are not\ngiven in the notice on what ground notice under section 148 was issued and\nsubmitted that the return filed on 29.07.2011 may be treated as in response to the\nnotice under section 148. Thereafter, the AO has again issued notice under section\n148 dt. 28.03.2017. In response thereto the assessee has filed the ITR on\n01.05.2017 and the assessee has also filed letter dated 04.05.2017 objecting the\nproceedings. This notice was issued with the approval of the Addl. CIT. Notice\nunder section 142(1) of the IT Act, 1961 along with query letter were issued on\n\n5\nITA No. 654/JPR/2023\nMahendra Sharma vs. ITO .\n\n15.09.2017. In response thereto the assessee has filed the replies as required. The\nasessee has filled all the details related to the issue and the assessee has also\ndemand the cross examination and statements of the persons recorded u/s 132(4)\nwho allegedly admitted of providing the accommodation entries. However the ld.\nAO has denied the same. The ld. AO has issued the notice u/s 143(2) on dt.\n24.11.2017, which was barred by limitation.\n\n2.1\nHowever, the ld. AO not satisfied with the reply of the ld. AO and\ncompleted the assessment on dt. 19.12.2017 by making the addition of\nRs.93,42,332/- u/s 68 by treating the exempt LTCG as alleged unexplained cash\ncredit. And also made the addition of Rs.5,76,262/- u/s 69C on account of alleged\nunexplained expenditure @ 6% for obtaining these alleged bogus LTCG.\n\n2.2\nIn first appeal before ld. CIT (A), assessee has filed detailed written\nsubmission and documents. However, the ld. CIT(A) has summarily rejected the\nsame and has not considered the same and dismissed the appeal of the assessee by\nstating that -\n\n“5.1 I have gone through the Assessment Order and submissions of the appellant.\nThe learned AO carried addition of Rs.93,42,332/- by reversing exempted long\nterm capital gain u/s 10(38) of I.T. Act. The appellant had sold shares named as\nM/s Shree Nath Commercial & Finance Ltd. the same were found to be penny\nstock. The learned AO contented that the underlined companies were bogus and\nwithout any substance and he observed that there is sudden surge in the volume\ntraded and price is artificially rigged for these shares. The action learned AO is\nbased on Investigation carried out by Kolkata Investigation Directorate on 84\n\n6\nITA No. 654/JPR/2023\nMahendra Sharma vs. ITO .\n\npenny stocks. These shares sold by appellant falls under such investigation. In the\nsubmissions the appellant had claimed that the contentions are genuine. However,\nit failed to refute the contentions raised by learned AO i.e., reason for sudden\nincrease in trade volumes, unusual rise in price, findings of investigation wing,\njustification against order of SEBI wherein artificial methods are adopted for\nmanipulating the prices, inadequate financial health of underlined company.\n\n5.2 The reliance is placed on following judicial pronouncement The Hon'ble\nApex Court in Civil Appeal No.1969 of 2011 in the case of SEBI Vs. Rakhi\nTraders (P) Ltd (with Civil Appeal No.3174- 3177 of 2011 and Civil\nAppealNo.3180 of 2011) vide its order dated 08.02.18 observed as follows:\n\n5.3 In view of the above I am of the considerate view that the addition carried out\nby learned AO is correct and is upheld.\n\nNow, being aggrieved by the order of ld. CIT (A), the assessee has preferred this\nappeal before us.\n\n3. Before us, the ld. A/R of the assessee submitted his written submissions as\nunder :-\n\n“

1. No notice under section 143(2) is issued before time hence assessment is invalid:\n\n1.1 The ld. AO passed the reassessment order or has completed by the AO without\nissuing notice under section 143(2) of the IT Act, which was mandatory and, therefore\nthe order passed by the AO is illegal and not sustainable in law.\n\n1.2 As the Appellant filed his original return of Income on 29.07.2011 vide\nacknowledgement 254712610290711 declaring the total income of Rs.1,47,600/-. The\nld. AO has issued the notice u/s 148 on 28.09.2016. In response thereto the assesssee\nhas filed the letter on 17.10.2016 at the Dak Counter of the AO, in response to the notice\nunder section 148 dt. 28.09.2016 and admittedly submitted that the return of income filed\nunder section 139 of the Act may be treated as return in response to notice under section\n148 vide letter (PB30). Hence Notice under section 143(2) is mandatory to be issued and\nserved till 30.09.2017, and in absence of such service, Assessing Officer cannot proceed\nto make an inquiry on return filed in compliance with notice issued under section 148.\nAnd in the present case the ld. AO has issued the notice u/s 143(2) on dt. 24.11.2017,\n\n7\nITA No. 654/JPR/2023\nMahendra Sharma vs. ITO .\n\nwhich is barred by the limitation and when the notice u/s 143(2) is barred by the\nlimitation then all the subsequent proceedings and assessment is illegal bad in law and\nvoid ab initio and liable to be dropped. It is submitted that the facts of the case are quite\nsimilar and identical with the facts of the following cases.\n\n1.3 Recently in the case of Gyatri Sharma v/s ITO Ward Bundi in ITA\nNo.461/Jp/2018 dt.21.12.2020, the Honble Bench has quashed the assessment order in\nabsence of notice u/s 143(2) Copy of order is enclosed and the observation given in this\norder may be taken as also our arguments or submissions before your honor.\n\n1.4 In this matter we have to further submit that the CBDT circular No.549 dated\n31/10/1989 (1990) 823 CTR (SC) (1) makes it abundantly clear that once an assessee does\nnot received a notice u/s 143(2) within the period stipulated then such an assessee “can take\nit that the return filed by him has become final and no scrutiny proceedings are to be\nstarted in respect of that return”. The position emerges from this CBDT circular was\nreferred to and clarified by Hon'ble Punjab and Haryana High Court in the case Vipan\nKhannaVs. CIT (2002) 175 CTR (P&H) 335. The Hon'ble High Court referred the\ncircular in this case and observed that in case where the AO chose to verify the return and\nframe an assessment he has to issue a notice u/s 143(3) of the Act requiring the assessee to\nproduce his books of accounts and other material in support of his return. The High Court\nproceeded to observe:\n\n“Thereafter he can make an assessment order under sub-section(3) of the section\n143 of the Act. Another important change incorporated in subsection (2) of section\n143 of the Act is that the notice under this sub-section cannot be served on an\nassessee after the expiry of 12 months from the end of the month in which the return\nis furnished. Therefore, in a case where a return is filed and is proceed u/s\n143(1)(a)of the Act and not notice under sub-section (2) of Section143) of the Act\nthereafter is served on the assessee within the stipulated period of 12 months, the\nassessment proceedings u/s 143 come to an end and the matter becomes final.\nThus, although technically no assessment is framed in such a case yet the\nproceedings for assessment stand terminated.\n\n1.

5. Similarly the issue related to issue of notice u/s 143(2) in case of assessment has been\ndiscussed in detail in ACIT &Anr Vs Hotel Blue Moon (2010) 229 CTR (SC) 219: \"An\nanalysis of this subsection indicates that, after the return is filed, this clause enables the\nAssessing Officer to complete the assessment by following the procedure like issue of\nnotice under section 143(2)/142 and complete the assessment under section 143(3). This\nsection does not provide for accepting the return as provided under section 143(1)(a).\nThe Assessing Officer has to complete the assessment under section 143(3) only. In case\n\n8\n Sharma vs. ITO .\n\nof default in not filing the return or not complying with the notice under section\n143(2)/142, the Assessing Officer is authorized to complete the assessment ex parte under\nsection 144. Clause (b) of section 158BC by referring to section 143(2) and (3) would\nappear to imply that the provisions of section 143(1) are excluded. But section\n143(2)itself becomes necessary only where it becomes necessary to check the return, so\nthat where block return conforms to the undisclosed income inferred by the authorities,\nthere is no reason, why the authorities should issue notice under section 143(2).\nHowever, if an assessment is to be completed under section 143(3) read with section\n158BC, notice under section 143(2) should be issued within one year from the date of\nfiling of block return. Omission on the part of the assessing authority to issue notice\nunder section 143(2) cannot be a procedural irregularity and the same is not curable\nand, therefore, requirement of notice under section 143(2) cannot be dispensed with.\"\n(emphasis added)\n\n1.6That issue of a notice u/s143(2) of the Act, is mandatory even in a reassessment\nproceeding initiated u/s 148 of the Act has been clearly laid down by the Hon'ble\nDelhi High Court in the case of M/s. Alpine Electronics Asia PTE Ltd. V/s DGIT\n&Ors.,341 ITR 247(Del) considering the decision of the Hon'ble Apex Court in the\ncase of Hotel Blue Moon (supra) at para 24ofthejudgmenttheirLordships\nheldthatSection143(2) was applicable to a proceedings u/s 147/148 also, since\nproviso to section148 of the Act, granted certain specific liberties to the revenue,\nwith regard to extension of time for serving such notices. The Coordinate Bench in\nthe cases of M/s. Amit Software Technologies Pvt. Ltd, (supra) after considering\nthe decision of the Hon'ble Madras High Court as well as Delhi High Court had held\nthat Section143(2) of the Act, was a mandatory requirement and not a procedural\none. In completing the assessment u/s 148 of the Act, compliance of the procedure laid\ndown u/s 143 and 143(2) is mandatory.\n\nThus looking to the above facts, circumstances and legal position of law the assessment is\nalso illegal and liable to be quashed.\n\n1.7 M/s Kaizen Organics Pvt. Ltd. V/s THE ACIT, CIRCLE-3, JAIPUR- ITAT,\nJAIPUR Held: Reassessment order jurisdictional passed by the AO u/s 147 without\nissuance of statutory notice u/s 143(2) is not sustainable in law –\n\n1.8 G. N. Mohan Raju V/s Income-tax Officer [2015] 57 taxmann.com 415\n(Bangalore - Trib.) [2015] 167 TTJ 236 (Bangalore – Trib.)] Held:\nassessee requested vide Assessing Officer to treat original return as one in response to\nsection 148 proceeding, notice under section 143(2) was mandatory; otherwise re-\nassessment would be bad in law [CIT v Alstom T & D India Ltd. (2014) 45 taxmann.com\n424 (Mad)] See also.\n\n9\nITA No. 654/JPR/2023\nMahendra Sharma vs. ITO .\n\n1.9 CIT V/s Rajeev Sharma (2010) 232 CTR 303 (All)Held:\nProvision contained in section 143(2), is mandatory in nature and it is obligatory for the\nAssessing Officer to apply his mind to the contents of the return filed in response to\nnotice under section 148 and thereafter issue notice under section 143(2), before\nproceeding to decide the controversy regarding escaped assessment, non issue of notice\nunder section 143(2), after filing of return of return by assessee vitiated the reassessment\nproceedings\n\n1.10 ACIT V/s Geno Pharmaceuticals Ltd. (2013) 214 Taxman 83 (Bom).Held\nNotice under section 143(2) is mandatory, and in absence of such service, Assessing\nOfficer cannot proceed to make an inquiry on return filed in compliance with notice\nissued under section 148\n\n1.11 PCIT V/s Silver Line (2016) 383 ITR 455 (Del)] Held\nOrder of reassessment cannot be passed without notice under section 143(2).\nJurisdictional error cannot be cured by section 292BB.\n\n1.12 CIT V/s Jai Shiv Shankar Traders Pvt. Ltd. (2016) 383 ITR 448 (Del) Held\nAlso refer Travancore Diagnostics (P.) Ltd. v ACIT (2017)390 ITR 167 (Ker)]\nFailure of AO to issue notice under section 143(2) prior of finalizing re-assessment order\ncould not be condoned by referring to Sec. 292BB and is fatal to the order of re-\nassessment-Re-assessment was not sustainable in law.\n\n1.13 ALOK MITTAL V/S DCIT (2008) 162 DTR 13 (Kol.) (Trib.) Sec 147,\n292BAssessment made by the AO u/s 147 without issuance of statutory notice u/s 143(2)\nis bad in law and the same is liable to be cancelled. AO cannot claim the benefit of\nsection 292B in a case where notice u/s 143(2) was not issued.\n\n1.14 That the reassessment has been completed by the AO without issuing notice under\nsection 143(2) of the IT Act timely and, therefore, the order passed by the AO is illegal\nand not sustainable in law.\n\n2. On perusal of the report submitted by the ld. DR during the course of last hearing and\ninspection of the assessment record and order sheet entry dt.17.10.2016 it has come to\nour knowledge, where it has been mentioned “ written reply filled by the assessee and\nnotice issued u/s 143(2) for dt.21.11.2016" and showing signature of the counsel.\nHowever as stated by the counsel that on dt.17.10.2016 neither he has appeared in the\noffice of the ITO Ward 4(3) Jaipur nor he has received any notice u/s 143(2)\ndt.17.10.2016 on that day. As on the order sheet entry dt. 17.10.2016 name of the\ncounsel is not appearing or mentioned, while on other entries his name and appearance\nare coming or mentioned i.e “Present Sh. V.K. Sharma advocate”. As he stated that the\n\n10\nITA No. 654/JPR/2023\nMahendra Sharma vs. ITO .\n\nld. AO had taken his various signature on the order sheet in one sitting and he in good-\nfaith of the AO, without reading the same signed the order sheet, but in facts on dt.\n17.10.2016 neither he has appeared nor received any notice u/s 143(2) on that day. He\nhad received notice U/s 143(2) dt. 24.11.2017 first time on dt. 08.12.2017. In support the\naffidavit of the counsel is enclosed.\n\n2.1Further in the report and in the Event chart at page 8 the ld. DR has stated that at Sr.\nNo. notice u/s 143(2) issued on 17.10.2016 on the same date when the assessee has filed\nthe ITR on dt.17.10.2016 in the office of the AO at dak. But assessee has not received\nsuch notice and the ld. DR has also not produced the copy of such notice with the reply, if\nsuch notice is issued then the same should be produced with the dispatch No. and with\nthe proof of service, because in same list at page 9 also the ld. DR has stated that notice\nu/s 143(2) issued on 24.11.2017 which we have already produced and also in the order\nsheet entries dt. 24.11.2017 mentioned that notice u/s 143(2) issued, which has been\nserved. If the ld. AO had issued the notice on dt. 17.10.2016, then what was the necessity\nto issue the same again on dt. 24.11.2017 and in the assessment order also there is\nmention about the notice dt.17.10.2016. The ld. DR has not stated anything on this\nregard. It means either no notice has been issued earlier or not served upon the assessee\nor no proper procedures have been followed.\n\n2.2 Further we would like to submit that when assessee has filed the ITR with the letter in\nthe Dak, then how it is possible to issue and serve the notice on the assessee on the same\nday. Which create a serious doubt. Hence it was necessary for the DR to produce the\nnotice with the service, dispatch no. before the court but he has failed to do so.\n\nIn the case of Simranpal Singh Suri vs. ITO May 12,\n2021 (2021) 62 CCH 0113 Del TribReassessment—Issuance of notice-Assessee\nis an individual and engaged in business of civil works contracts—Information\nwas available on ITD System regarding cash deposits in Bank account—AO, on\nground that no return for year under consideration was filed, reopened\nassessment u/s 147—AO asked for various details from assessee to substantiate\nvarious expenses claimed—Since assessee did not provide relevant details before\nhim, AO rejected book results and made an addition being 25% of various\nexpenses claimed in P&L Account—CIT(A) upheld addition made by AO—Held,\ncase of assessee was reopened on ground that assessee has made cash deposit in\nvarious bank accounts during year and assessee has not filed her return of\nincome-However, a perusal of paper book filed on behalf of assessee shows that\nassessee has filed return of income for impugned assessment year—PCIT, while\ngiving his approval has not applied their mind and had given approval in a\nmechanical manner-It has been held in various decisions that reopening of\nassessment on wrong set of facts makes such reopening a nullity—Even otherwise\nalso, approval in instant case has been given in a mechanical manner on wrong\nfacts that assessee has not filed his return of income—Similar view has been taken\nby coordinate Benches of Tribunal in various other decisions to proposition that\nwhen approval was given mechanically by superior authorities, assessment so\n\n11\nITA No. 654/JPR/2023\nMahendra Sharma vs. ITO .\n\nframed is liable to be quashed—Notice u/s 143(2) was issued to assessee on very\nsame day on which assessee appeared and furnished copy of ITR in response to\nnotice u/s 148—It has been held in various decisions that when notice u/s 143(2)\nis issued to assesseee on very same day on which assessee filed return in response\nto notice u/s 148 stating that return already filed may be treated as return in\nresponse to notice u/s 148, such notice issued u/s 143(2) on very same day has to\nbe treated as invalid and assessment is vitiated due to non-application of mind by\nAO-Therefore, on all counts reassessment proceedings initiated by AO and\nuphheld by CIT(A) is not in accordance with law-Assessee's appeal allowed.\n\nFurther on the perusal of the order sheet it is clearly appearing that the same has been\nwritten in one sitting and back date. Hence kindly peruse the order sheet.\n\n3. Copy of reasons Recorded not supplied nor objection decided: Further after filling\nthe ITR u/s 148 on dt.17.10.2017 we had demanded the copy of reasons recorded u/s 148\nvide para 3 page 36 of the assessment order and also filed the objection against the\nissuance of notice or proceedings u/s 148 vide letter dt. 17.10.2017 and 04.05.2017\n(PB30 and 32). However the ld. AO has neither provided the copy of reasons recorded\nu/s 148 nor decided the objection u/s 148 which was mandatory as per law and settled\nlegal position of law.\n\nRecently the honble ITAT Jaipur Bench in the case of Banwari Lal Pareek V/s_ITO\nWard 1(5), Jaipur in ITA No. 135/Jp/2020 dt. 27.07.2022 it has been held that\n\n\"2.3 We have heard both the parties and perused the material available on record.\nIt is an admitted fact that from the very beginning the assessee had been\ndemanding the reasons recorded and in this regard the reply dated 27-11-2017\n(PBP 53-54) of the assessee written to the ITO, wherein the assessee had\nspecifically asked and demanded the AO to provide the reasons for issuance of\nNotice u/s 148 of the Act to the assessee. However, the AO did not provide the\nsame. In appeal before the ld. CIT(A), the assessee had categorically raised the\nspecific ground that the reasons recorded for reopening of the assessment was\nnever supplied / provided to the assessee. However, the ld. CIT(A) had ignored\nthe said ground of the assessee and also did not deal with the specific ground\nraised by the assessee. In our view, the AO was bound to furnish reasons recorded\nby him within a reasonable time as has been held by the Hon'ble Supreme Court\nin the case of GKN Driveshafts (India) Ltd. vs ITO (supra) wherein the\nHon'ble Court held as under:-\n\n‘’5. We see no justifiable reason to interfere with the order under challenge.\nHowever, we clarify that when a notice u/s 148 of the Income Tax Act is issued,\nthe proper course of action for the noticee is to file return and he so desires, to\nseek reasons for issuing notices. The Assessing Officer is bound to furnish\nreasons within a reasonable time. On receipt of reasons, the noticee is entitled to\nfile objections to issuance of notice and the assessing officer is bound to dispose\nof the same by passing a speaking order. .In the instant case, as the reasons have\nbeen disclosed in these proceedings, the assessing officer has to dispose of the\nobjections, if filed, by passing a speaking order, before proceeding with the\nassessment in respect of the above said five assessment years.”\n\nAs per record, since the reasons recorded for reopening of the assessment were not\nfurnished to the assessee till the completion of the assessment, therefore, in our\nconsidered view, the reassessment order in these circumstances of the case, cannot be\nupheld. For reaching this conclusion, we draw strength from the decision of Hon'ble\nBombay High Court in the case of CIT vs Videsh Sanchar Nigam Ltd (2012) 340 ITR 66\nwherein Hon'ble Bombay High Court had categorically held that since the reasons\nrecorded for reopening of the assessment were not furnished to the assesse till the\ncompletion of the assessment then reassessment order cannot be upheld and thus\ndismissed the appeal filed by the Revenue. Even in the case of CIT vs Trend\nElectronics reported in (2015) 379 ITR 456, Hon'ble Bombay High Court has\ncategorically held as under:-\n\n''Income Tax Act 1961 Section 147 and 148 Reopening of assessment – validity\nof - Notice - Objections – Recording of reasons and furnishing of reasons to be\nstrictly complied with – Failure on part of assessee to furnish reasons recorded to\nassessee when sought for Reassessment not valid Quashed Appeal\ndismissed.\"\n\nHon'ble Karnataka High Court in the case of Pr.CIT and Another vs V. Ramaiah (ITA\nNo. 451 of 2017 dated 02-07-2018) has held as under:-\n\n''8. The decision relied upon by the learned counsel for the\nRevenue is distinguishable on facts. The order which was to be passed by the\nassessing authority as preliminary objection of the assessee, once the assessee has\nraised the objection to such reassessment‘proceedings, the meeting of such\nobjections in the main reassessment order, could be procedural aspect of the\nmatter but the recording of the reasons before the initiation of the reassessment\nproceedings and communication thereof to the assessee is sine qua non as held by\nthe Hon'ble Supreme Court and that goes to the root of the matter and confers or\ndeprives the assessing authority of the jurisdiction to undertake such reassessment\nproceedings, as the case may be.\n\n9. In the present case, admittedly, such reasons were not supplied to the assessee\nduring the contemporary period before going ahead with the reassessment\nproceedings. Therefore, the Tribunal in our opinion was perfectly justified in\nquashing such reassessment order.\n\n10. We do not find any substantial question of law arising in the matter.\nTherefore, the appeal of the Revenue stands dismissed. No costs.”\n\n12\nITA No. 654/JPR/2023\nMahendra Sharma vs. ITO .\n\nThe SLP of the Revenue against the above order of Karnataka High Court (supra) has\nalso been dismissed by the Hon'ble Supreme Court reported in (2019) 262 Taxman 16.\nTherefore considering the totality of the facts and circumstances of the case and keeping\nin view the legal proposition as discussed above, we hold that recording of reasons before\ninitiation of reassessment proceedings and communication thereof to the assessee is sine\nqua non as held by the Hon'ble Supreme Court (supra) that goes to the root of the matter\nand confers or deprives the assessing authority of the jurisdiction to undertake such\nreassessment proceedings, as the case may be. In the present case, admittedly such\nreasons were not supplied to the assessee during the contemporary period before going\nahead with the reassessment proceedings. Therefore, in our view, the reassessment\nproceedings initiated and consequential order passed by the AO and appeal order passed\nby the ld. CIT(A) are not justified and, therefore, we quash such reassessment order.\nTherefore, the ground raised

by the assessee is allowed and consequential appeal of the\nassessee is also allowed with no order as to cost.\"\n\nHere also the same position.\n\nFurther the Honble Raj. High Court in the case of M/s K.C. Mercantile V/s DCIT\nCircle-2, Jaipur in DBIT No. 292/2016 dt. 07.11.2017 it has been held:\n\nBefore proceeding with the matter, it is not out of place to mention that the law\ndeclared by the Supreme Court in GKN Driveshafts (supra) clearly held that the\npreliminary objection is to be decided as the first, it cannot be decided\nsubsequently. The argument which has been canvassed by the assessee is required\nto be considered very seriously more particularly in view of the observations\nmade by the Supreme Court in the case of KSS Petron Private Ltd (supra)\nwhich is followed in Hotel Blue Moon (supra), the law declared by the Supreme\nCourt is taken in true spirit whether it will open a second inning in his own.\nSection 153(3) is to be read very cautiously as 153 powers are given to the\nDepartment, the Court has to look into whether the law declared by the Supreme\nCourt is given away or protected. In the present case, as the Assessing Officer has\nclearly ignored the law declared by the Supreme Court, in that view of the matter,\nthe issues which are raised in the matter, the Tribunal ought not to have remitted\nback for reassessment since period of limitation has already expired as the\nauthority will get extended time of limitation beyond 9 months which is not the\nobject of the Income Tax Act.\n\nIn that view of the matter, on issue No. 1 and 2, the order of reassessment passed\nby the Tribunal is declared null and void. The questions are answered in favour of\nassessee and against the Department.\n\nRecently this Honble Tribunal in the case of in the case of Yashpal Agrawal the\nHonble ITAT In ITA No. 268/Jp/2023 dt. 30.06.2023 has quashed the assessment order\non the grounds that the objections filled by the assessee against the proceedings u/s\n147/148 has not been decided here is also the same position.\n\n13\nITA No. 654/JPR/2023\nMahendra Sharma vs. ITO .\n\nThe ld. DR in his report dt.06.08.2024 has wrongly stated that on examination of\nassessment record, it is noticed that no letter dt. 04.05.2017 is placed on record and as\nper order sheet entries between 22.11.2016 to 15.09.2017, the assessee has not filled any\nobjection letter dt. 04.05.2017 before the ld. AO against the reassessment proceedings,\nu/s 147/148 of the Act, he filed his reply to the dak counter to take receipts only. In this\nregard it is submitted that we failed to understand what the ld. DR has sated, as one side\nhe has stated that no objection filed further he has stated that he filed his reply to the dak\ncounter to take receipts only, which is contradictory his own. When we had filed the\nsame in the Dak counter which is the proof, if the same is not on record then it is not the\nfault of the assessee. Further we have taken the objection vide our letter dt.\n04.05.2017(PB32), 06.11.2017, 10.11.2017, 18.12.2017The report of the ld. AO or DR\nwithout any basis and rebuttal of the details and reply filled by the assesssee.\n\nThus on the above legal position of law the notice u/s 148 or proceedings u/s 147/148\nand consequent assessment order liable to quashed.\n\n4. Second 148 notice dt.28.03.2017 was issued without approval of any higher\nauthorities, without recording reason, without withdrawing first 148 notice dt.\n28.09.2016 and the assessment and all the proceedings were based on the first notice as\nclearly appearing from the assessment order.\n\n5. Further on perusal of the approval and assessment record it has come to know that in\nthe satisfaction the ld. Pr.CIT has mentioned only that “Yes I am Satisfied\". The ld. Pr.\nCIT has given the approval and satisfaction in the mechanical manner, he has not\nrecorded his own satisfaction. As on perusal of the reason recorded and approval u/s\n151 by the without competent authority it is clearly proved that they have not applied the\nmind on the reasons recorded they have only expressed or mentioned yes I am satisfied\nby the Add. CIT not by Pr. CIT on the reason forwarded. While as per decision of Pr.\nCIT vs. N. C. Cables Ltd.(2017)

98. CCH 0010 DelHC it has been held that Section\n151 of the Act clearly stipulates that the CIT, who is the competent authority to authorize\nthe reassessment notice, has to apply his mind and form an opinion. The mere appending\nof the expression ‘approved' says nothing. It is not as if the CIT has to record elaborate\nreasons for agreeing with the noting put up. At the same time, satisfaction has to be\nrecorded of the given case which can be reflected in the briefest possible manner. In the\npresent case, the exercise appears to have been ritualistic and formal rather than\nmeaningful, which is the rationale for the safeguard of an approval by a higher ranking\nofficer. For these reasons, the Court is satisfied that the findings by the ITAT cannot be\ndisturbed.\n\nHere is also the same position copy of reason recorded is enclosed(PB1-3) because no\nsatisfaction by the ld. Pr. CIT, the satisfaction if any was of the ld. Add. CIT, who is not\ncompetent in the present case.\n\n14\nITA No. 654/JPR/2023\nMahendra Sharma vs. ITO .\n\nOn this preposition kindly also refer\n\nAlso refer Maruti Clean Coal And Power Ltd. vs. ACIT (2018) 400 ITR 0397\n(Chhattisgarh)\n\nIn the case of CIT vs. S. Goyanka Lime & Chemicals Ltd. (2015) 231 TAXMAN\n0073 (MP) it has been held that While according sanction, the Joint Commissioner,\nIncome Tax has only recorded so “Yes, I am satisfied” If the case in hand is analysed on\nthe basis of the aforesaid principle, the mechanical way of recording satisfaction by the\nJoint Commissioner, which accords sanction for issuing notice under section 147, is\nclearly unsustainable and we find that on such consideration both the appellate\nauthorities have interfered into the matter. In doing so, no error has been committed\nwarranting reconsideration. (para 7)\n\nAs far as explanation to Section 151, brought into force by Finance Act, 2008 is\nconcerned, the same only pertains to issuance of notice and not with regard to the\nmanner of recording satisfaction. That being so, the said amended provision does not\nhelp the revenue. No question of law involved in the matter, warranting\nreconsideration appeals are, therefore, dismissed.\n\nAlso refer PAC AIR SYSTEMS P. LTD. vs. ITO (2020)

58. CCH 0001 Del Trib it has\nbeen held that Reassessment—Income escaping assessment-Assessee filed present\nappeal challenging order of CIT(A) wherein, AO's action was accepted—\nAssessee contended that AO had erred in assumption of jurisdiction u/s 147/148 based on\ninvalid and mechanical approval granted by Addl. CIT—Held, approval granted by Addl.\nCIT was a mechanical and without application of mind, which was not valid for initiating\nre-assessment proceedings, because from said remarks, it was not coming out as to which\nmaterial; information; documents and which other aspects went gone through and\nexamined by Addl. CIT for reaching to satisfaction for granting approval—Thereafter,\nAO had mechanically issued notice u/s 148—Reopening in assessee's case for AY in\ndispute was bad in law and deserved to be quashed-Approval granted by Addl. CIT was\na mechanical and without application of mind, which was not valid for initiating\nreassessment proceedings issue of notice u/s 148 and was not in accordance with s.151\nthus, notice issued u/s 148 was invalid and accordingly, reopening in this was bad in law\nand therefore, same was hereby quashed-Assessee's appeal partly allowed.\n\nIn the case of Gorika Investment And Export (P) LTD. vs. ITO (2018)

53. CCH 0168\nDelTribReopening-Income escaping assessment—Validity thereof-Assessee filed\nreturn of income declaring income which was processed u/s.143(1)—AO issued notice\nu/s.148 after recording reasons that income of assessee had escaped assessment—AO\nframed assessment u/s.143(3) r.w.s.147 by making addition—CIT(A) upheld order of\nAO-Held, in CIT Vs N.C. Cables Ltd., it was held that CIT(A) who was competent\nauthority to authorize reassessment notice had to apply his mind and form opinion—\nMere appending of expression ‘approved' says nothing—Satisfaction had to be recorded\nof given case which could be reflected in briefest possible manner—Exercise appears to\n\n15\nITA No. 654/JPR/2023\nMahendra Sharma vs. ITO .\n\nhad been ritualistic and formal rather than meaningful, which was rationale for\nsafeguard of approval by higher ranking officer—AO initiated proceedings u/s.147 r.w.s.\n148 on basis of information furnished by Directorate of Investigation Unit and CIT gave\napproval without applying his mind in slip-shod manner-As approval/sanction given by\nCIT was without recording satisfaction, reopening was not sustainable-Assessee's\nappeal allowed.\n\nTARA ALLOYS LTD. vs. ITO (2018)

63. ITR (Trib) 0484 (Delhi)Reassessment—\nIncome escaping assessment-Validity thereof Case of assessee was selected for\nscrutiny as per provisions of section 147 and 151 and accordingly notice u/s 148 was\nissued to assessee-Proceedings u/s 147/148 were initiated after recording reasons on\nbasis of information received from Investigation Wing of Department on basis of search\nand seizure operation—During course of assessment proceedings, assessee was\nspecifically asked to explain and justify transaction with G received as share application\nmoney/share capital and why same should not be disallowed or added in income\nof assessee-AO held that it was camouflage just to introduce its own fund through entry\noperator therefore amount was added in income of assessee company as unexplained u/s\n68—CIT(A) confirmed reassessment and addition made by AO of share capital and\nunexplained cash credit—Held, notice u/s 148 could be quashed if ‘belief” was not bona\nfide or one based on vague, irrelevant and non-specific information—Basis of belief\nshould be discernible from material on record which was available with AO when he\nrecorded reasons—There should be link between reasons and evidence/material\navailable with AO—Commissioner had simply affixed “approved” at bottom of note\nsheet prepared by ITO technical—ITO could not have had reason to believe that income\nhad escaped assessment by reasons of assessee 's failure to disclose material facts and if\nCommissioner had read report carefully he could not have come to conclusion that this\nwas fit case for issuing notice u/s 148—Commissioner had simply put “approved” and\nsigned report thereby giving sanction to AO-Nowhere Commissioner had\nrecorded satisfaction note, not even in brief after applying his mind—After expiry of four\nyears from end of relevant assessment year, notice u/s 148 should not be issued unless\nCommissioner was satisfied that it was fit case for issue of such notice—–Reassessment\nproceedings and notice being bad in law were quashed-Assessee's appeal allowed.\n\nAlso refer a recent judgment of this Honble ITAT in the case of Sh. Anshuman Singh v/s\nACIT Circle-1 Jaipur in ITA No.733 & 739/JP/2023 dt. 10.04.2024.\n\n6. No income escaped: Further it is submitted that the notice u/s 148 can be issued only\nwhen there is any escape of income because S. 147 provides that If the Assessing Officer\nhas reason to believe that an income chargeable to tax has escaped assessment for any\n assessment year, here the assessee has not escaped any income because the assessee has\nnever having the undisclosed or unexplained income as alleged and the same has already\nbeen included in the ITR filled originally. Which shows that there was no escapement of\nincome by the assessee, as the assessee is having income from salary, capital gain and\nother sources. Hence if there is neither the escapement of income by the assessee nor\nproved then the notice issued u/s 148 is invalid.\n\n16\nITA No. 654/JPR/2023\nMahendra Sharma vs. ITO .\n\n7. The Reasons for Reopeningof the assessment not valid:-\nThat the learned AO has grossly erred both in law and facts where the assessee has\nalready made full and true disclosure of all the relevant materials in the first instance\nwhen the original assessment was framed- reasons for reopening fail to mention which\nmaterial was failed to be disclosed by the assesse. It cannot be said that the there was any\nfailure on the part of assesse to disclose truly and fully all material facts necessary for\nassessment. There is no finding of concealed income. The reopening is based on third\nparty statement which have No evidentiary value without providing the cross\nexamination.\n\nAs the reasons as recorded by the ld. AO for reopening the assessment was totally\npresumptive/assumptive/surmises and vague in the air only in a mechanical manner\nbecause assessee already disclosed all the material facts regarding such long term capital\ngain in the ITR filled u/s 139(1) on which behalf the Ld. AO alleged that assesse has\nfailed to disclosed fully and truly material facts. Thus the re-assessment proceedings in\nthis case were only based on presumption/suspicion and were thus not validly initiated.\nThe Ld. AO recorded the reasons without pointing out his own any finding regarding\nconcealed income and about how the assessee has failed to disclosed fully and truly\nmaterial facts while the assesse has done all the compliance on his part in this regard,\ntherefore complete re-assessment proceedings void ab initio and bad in law and deserve\nto be quashed.\n\n8. Re-assessment is based on borrowed satisfaction;\nThe Ld. AO has issued notice u/s 148 on the basis of borrowed information from the\nInvestigation Wing in respect of bogus LTCG, without verifying the correctness of the\ninformation and therefore re-assessment proceedings is absolutely bad in law and without\njurisdiction and further AO not recorded his satisfaction and re-assessment is based on\nborrowed satisfaction which was not sufficient to confer power on the AO to initiate\nreassessment proceedings against assessee.\n\nCIT vs. Shree Rajasthan Syntex Ltd. (2009)313 ITR 231 (Raj.) SLP dismissed (2009)\n313 ITR (St.)

27. (SC);\n\nSun Pharmaceutical Industries Ltd. Vs. DY. CIT (2016)287 CTR(Del.)621;\n\nThe Impugned initiation of assessment proceedings had started by the AO on borrowed\nsatisfaction but not their own which is mandatory condition of the law as provided for re\n-opening of any assessment. Section 147 of Act clearly specify. In impugned case the Ld.\nAO had claimed that a certain transaction of bogus LTCG on the basis of statements\nas recorded of third party and Ld. AO could not have been made any enquiry\nregarding both the facts and without conducting any enquiry/investigation re-\nopened the case and issued the notices which is completely based on perverse\nfindings and deserve to be declared as null and void ab initio.\n\n17\nITA No. 654/JPR/2023\nMahendra Sharma vs. ITO .\n\nHere in impugned case AO's self-satisfaction regarding escapement of income is not\nbringing on record which is mandatory condition of law under section 147 of Income Tax\nAct, 1961, it could have been come only after conducting enquiry and investigation but\nLd. AO did not make such therefore complete re-assessment proceedings come under\nsuspicious circle, various honorable courts propounded and led on this aspect and issue\ndirection to handle such situation.\n\nSimilarly in the case of CIT v. Indo Arab Air Services (2016) 130 DTR 78/ 283 CTR\n92 (Delhi)(HC) it was held that mere information that huge cash deposits were made in\nthe bank accounts could not give the AO prima facie belief that income has escaped\nassessment. The AO is required to form prima facie opinion based on tangible material\nwhich provides the nexus or the link having reason to believe that income has escaped\nassessment. The AO was also required to examine whether the cash deposits were\ndisclosed in the return of income to form an opinion that income has escaped assessment.\nThe power to reopen an assessment is conditional on the formation of a reason to believe\nthat income chargeable to tax has escaped assessment. The power is not akin to a\nreview. The existence of tangible material is necessary to ensure against an arbitrary\nexercise of power. Aventis Pharma Ltd. vs. ACIT (2010) 323 ITR 570 (Bom).\n\nThe ld. DR has not stated that what was the sufficient material and not provided the same\ntill date. As per the assessment order and reasons recorded it is clear that the notice has\nbeen issued only on the basis of information not on any material and such material has\nnot been disclosed till date. For that we have already submitted in our WS that the\nreopening is based on the borrowed satisfaction.\n\nThe ld. DR has referred so many judgments in his WS/reply but he has not filled any\ncopies of the same nor has given any note on the same in support that how the same are\napplicable in the present case.\n\nPrayer: In view of the above facts, circumstances the case and legal position the notice\nas well as the assessment may kindly be quashed.\"\n\n4. On the other hand, the ld. D/R supported the orders of the lower authorities.\n\nThe ld. D/R vide his letter dated 25.09.2024 submitted the AO report dated\n30.08.2024 addressed to Addl. CIT (Sr. DR)-II ITAT Jaipur, as under :-\n\n“ Kindly refer to your office letter no. Addl. CIT (Sr. DR-II/ITAT/JPR/2024-\n25/479 dated 21.08.2024 on the above mentioned subject. In this regard, the counter reply\non the submission by the assessee is as follow :\n\n18\nITA No. 654/JPR/2023\nMahendra Sharma vs. ITO .\n\n1. No notice under section 143(2) is issued before time hence assessment is\ninvalid.\n\nReply: In this paragraph the assessee has raised the contention that notice u/s\n143(2) has not been issued in time and has produced numerous case laws said to\nbe supporting his contention. However, bare perusal of the record available with\nthis office clearly shows that notice u/s 143(2) was issued on 17.10.2016 fixing\ndate of hearing on 21.11.2016 (Copy enclosed as annexure-1). The representative\nof the assessee has also acknowledged the same as his signature are present on the\norder sheet.(copy enclosed as annexure-2)\n\nThe same is also established from the fact that representative of the assessee had\nfurnished a reply on 27.09.2017 where the following is mentioned in the subject :\n\n“ Sub- Your notice in case of M/s. Mahendra Kumar Sharma, Jaipur PAN\n: CIJPS0428K, AY 2011-12. Notice u/s 143(2)/148 of the Act.\"\n\nThe above clearly implies that the assessee has received the notice u/s 143(2)\nand has clearly acknowledged the same. Hence, raising the ground that no notice was\nissued u/s 143(2) before 30.09.2017 is a futile attempt to mislead the proceedings.\nTherefore, this ground deserves to be quashed.\n\n2. In this point the assessee has stated the following :\n\n2. On perusal of the report submitted by the ld. DR during the course of last hearing and\ninspection of the assessment record and order sheet entry dt. 17.10.2016 it has come to\nour knowledge, where it has been mentioned “written reply filed by the assessee and\nnotice issued u/s 143(2) for dt. 21.11.2016” and showing signature of the counsel.\nHowever, as stated by the counsel that on dt. 17.10.2016 neither he has appeared in the\noffice of the ITO Ward 4(3) Jaipur nor he has received any notice u/s 143(2) dt.\n17.10.2016 on that day. As on the order sheet entry dt. 17.10.2016 name of the counsel is\nnot appearing or mentioned, while on the other entries his name and appearance are\ncoming or mentioned i.e. “Present Sh. V.K. Sharma advocate”. As he stated that the ld.\nAO had taken his various signature on the order sheet in one sitting and he in good-faith\nof the AO, without reading the same signed the order sheet, but in facts on dt. 17.10.2016\nneither he has appeared nor received any notice u/s 143(2) on that day. He had received\nnotice u/s 143(2) dt. 24.11.2017 first time on dt. 08.12.2017.”\n\nThe issue raised by the assessee is completely wrong as on every entry of the\norder sheet, signature of the representative of the assessee are present. Also as discussed\nabove, notice u/s 143(2) was issued on 17.10.2016 and assessee has acknowledge the\nsame in his reply. Therefore, all the story made up by the assessee is baseless and\ndeserves to be quashed.\n\n3. Copy of reasons recorded not supplied nor objection decided.\n\nAs per the order sheet entry dated 17.11.2017, it is amply clear that the assessee\nwas provided complete information in soft copy regarding the information received from\nInvestigation wing, on the basis of which, the case was reopened. (copy of order sheet\n\n19\nITA No. 654/JPR/2023\nMahendra Sharma vs. ITO .\n\ndepicting the same is enclosed).Therefore, it cannot be said that the reasons of reopening\nof the case were not provided to the assessee.\n\n4. Second 148 notice was issued without approval of any higher authorities,\nwithout recording reason, without withdrawing first notice dated 28.09.2016\nand the assessment and all the proceedings were based on the first notice as\nclearly appearing from the assessment order.\n\nIt is pertinent to mention here that notice u/s 148 is issued through ITBA and it is\nimpossible to withdraw notice which has been once issued u/s 148. Therefore,\nquestion of second 148 notice doesn't arise. Moreover, records of this office\nclearly reveal that no notice u/s 148 dated 28.03.2017 was issued in the case of\nthe assessee.\n\n5. In points no. 5, 6, 7, the assessee has once again questioned the reasons for\nreopening of the assessment and claimed that no income has been escaped. These\nissues have already been discussed at length in the assessment order and it can be\nsaid that the issue raised by the assessee are baseless and deserve no attention.\n\nThus, it is concluded that the contentions raised by the assessee are without any basis\nand the assessee is just raising new grounds in order to mislead the proceedings. This\nis submitted herewith for your kind perusal and consideration.”\n\n5.\nTo counter the above submissions, the ld. A/R of the assesseevide his letter\ndated 08.10.2024 submitted his comments and written submission on the report\nfiled by the ld. D/R, which are reproduced as under :-\n\n\"1.\nYour honor earlier we had filed our WS and paper book on the same the ld.\nDR has filled its report of AO. In this report the AO has stated that the notice u/s 143(2)\nwas issued on dt. 17.10.2016 fixing the date of hearing on 21.11.2016 and produced the\norder sheet, the ld. AO has also filed a letter dt. 27.09.2017 and alleged that the\ncontention of the assessee is mislead and wrong.\n\n2.1\nIn this regard it is submitted that we still stands on our WS and contention.\nAs now the ld. DR has mislead the matter and present wrong interpretation and\ndocuments very cleverly. As on perusal of the notice u/s 143(2) dt. 17.10.2016 and\n24.11.2017 it will appear that on both the notices signature of the ITO Ward 4(3) is not\nmatching and also perused the signature's on the order sheet, secondly on notice dt.\n17.10.216 there is no proof of service, no dispatch no etc. Further as per the ld. DR/AO\n\n20\nITA No. 654/JPR/2023\nMahendra Sharma vs. ITO .\n\nwhen the notice u/s 143(2) had been issued on dt.17.10.2016 then what was and why the\nnotice u/s 143(2) has been issued again on 24.11.2017 and served the same on the\nassessee, and on these no answer has been given. The ld. AO has not filed his counter\naffidavit on the same.\n\n2.2 Further the assessee has not filled any letter on dt.27.09.2017 in response to\nthe notice u/s 143(2) dated 17.10.2016. As the ld. DR/AO has filed letter dt. 27.09.2016\nwithout going through the same and make wrong comments. As this letter it is\nmentioned that “With reference to above that the notice for producing details is received\non 26.09.2017 the case is relevant to 2011-12 FY 2010-11 the details are collected from\nbank and broker. Therefore it is requested kindly provide the time and adjourned the case\nfor further date.” Certified copy of this letter dt. 27.09.2017 is enclosed. Thus this letter\nwas in response to the notice u/s 142(1) dt. 15.09.2017 where the case was fixed for\n27.09.2017 which was received by the ld. A/R on dt.26.09.2024 certified copy of notice\ndt.15.09.2024 is enclosed and on that date i.e 27.09.2017 A/R of assessee has appeared\nand the case was adjourned for 06.10.2017 kindly perused the order sheet and page 1 para\n2 of the assessment order, notice 142(1) dt. 15.09.2017 and letter dt.27.09.2017 where all\nthe details and noting are clearly mentioned and proving all the clear things and facts. As\nthe revenue has had not produced the clear copy of the letter dt. 27.092017 before the\nhonble bench as some words are missing in this letter, the reasons is best known to ld.\nDR. Hence we had for the certified copies of the letter and notice to the ld. AO to bring\nthe actual facts before the honble bench and we have received the same on dt.07.10.2024\nthus we able to bring the above facts before the honble bench. Thus the ld. AO/DR has\nmisleaded the matter by producing the notice dt. 17.10.2016 and incomplete letter\ndt.27.09.2017.\n\nFurther on perusal of the order sheet from 28.09.2016 to 15.09.2017 in which it is\nclear that the hearing has also been taken place between these days time to time. Further\nin the order sheets entries there is some gape but in the entries dated 21.11.2016 to\n15.09.2017 there is no gape and one entries put up by inserting later time.\n\n3. Regarding the copy of reasons recorded not supplied nor objection decided.\nThe ld. AO/DR has stated that “as per order sheet entry dated 17.11.2017, it is amply\nclear that assessee was provided complete information in soft copy regarding the\ninformation received from Investigation wing, on the basis of which, the case was\nreopened\".\n\nIn this regard it is submitted that on the reply of the same it is very clear that the\nld. AO/DR has admitted that no reason recorded has been provided to the assessee\nbecause the ld. AO had supplied “the information received from Investigation wing” not\nreasons recorded because the Investigation Wing has neither recorded reasons nor the law\nhas given the power to them, the reasons are to be recorded by the Assessing Officer\nonly. Further the ld. AO/DR has not given any comments and proof that our objection\n\n21\nITA No. 654/JPR/2023\nMahendra Sharma vs. ITO .\n\nwhen the notice u/s 143(2) had been issued on dt.17.10.2016 then what was and why the\nnotice u/s 143(2) has been issued again on 24.11.2017 and served the same on the\nassessee, and on these no answer has been given. The ld. AO has not filed his counter\naffidavit on the same.\n\n2.2 Further the assessee has not filled any letter on dt.27.09.2017 in response to\nthe notice u/s 143(2) dated 17.10.2016. As the ld. DR/AO has filed letter dt. 27.09.2016\nwithout going through the same and make wrong comments. As this letter it is\nmentioned that “With reference to above that the notice for producing details is received\non 26.09.2017 the case is relevant to 2011-12 FY 2010-11 the details are collected from\nbank and broker. Therefore it is requested kindly provide the time and adjourned the case\nfor further date.” Certified copy of this letter dt. 27.09.2017 is enclosed. Thus this letter\nwas in response to the notice u/s 142(1) dt. 15.09.2017 where the case was fixed for\n27.09.2017 which was received by the ld. A/R on dt.26.09.2024 certified copy of notice\ndt.15.09.2024 is enclosed and on that date i.e 27.09.2017 A/R of assessee has appeared\nand the case was adjourned for 06.10.2017 kindly perused the order sheet and page 1 para\n2 of the assessment order, notice 142(1) dt. 15.09.2017 and letter dt.27.09.2017 where all\nthe details and noting are clearly mentioned and proving all the clear things and facts. As\nthe revenue has had not produced the clear copy of the letter dt. 27.092017 before the\nhonble bench as some words are missing in this letter, the reasons is best known to ld.\nDR. Hence we had for the certified copies of the letter and notice to the ld. AO to bring\nthe actual facts before the honble bench and we have received the same on dt.07.10.2024\nthus we able to bring the above facts before the honble bench. Thus the ld. AO/DR has\nmisleaded the matter by producing the notice dt. 17.10.2016 and incomplete letter\ndt.27.09.2017.\n\nFurther on perusal of the order sheet from 28.09.2016 to 15.09.2017 in which it is\nclear that the hearing has also been taken place between these days time to time. Further\nin the order sheets entries there is some gape but in the entries dated 21.11.2016 to\n15.09.2017 there is no gape and one entries put up by inserting later time.\n\n3. Regarding the copy of reasons recorded not supplied nor objection decided.\nThe ld. AO/DR has stated that “as per order sheet entry dated 17.11.2017, it is amply\nclear that assessee was provided complete information in soft copy regarding the\ninformation received from Investigation wing, on the basis of which, the case was\nreopened\".\n\nIn this regard it is submitted that on the reply of the same it is very clear that the\nld. AO/DR has admitted that no reason recorded has been provided to the assessee\nbecause the ld. AO had supplied “the information received from Investigation wing” not\nreasons recorded because the Investigation Wing has neither recorded reasons nor the law\nhas given the power to them, the reasons are to be recorded by the Assessing Officer\nonly. Further the ld. AO/DR has not given any comments and proof that the objections\n\n22\nITA No. 654/JPR/2023\nMahendra Sharma vs. ITO .\n\nhave been decided by passing a separate speaking order. And for these we have already\nsubmitted our arguments in our WS filled earlier.\n\nFurther if the honble bench desire to know the facts the entire assessment records\nmay be called for and may see the matter.\n\n4. Approval of 6 assessee;s in one letter illegal: Further the ld. Pr. CIT/JCIT has\ngiven one consolidated approval of 6/2 assessee's through one letter dt. 27.09.2016 and\nthis show how the Pr. CIT/JCIT has acted in formal way. On perusal of the assessment\nrecord and documents it is found that the approval was not in original letter or\ndocuments. The document of approval letter was in the photocopy, further the approval\nletter was not signed by the ld. Pr.CIT but by the ITO(T&J). How the approval of all the\n6 different assessee's can be given in one documents, when all are the independent or\nseparate assessee and reasons are different. Thus it all shows how the wrong and illegal\nmanner has been adopted by all the authorities. On this preposition and issue kindly refer\nthe decision of this Honble ITAT in the case of Sh. Satya Naraya Bairwa v/s ITO in\nITA No. 867 & 869/Jp/2018 dt. 15.09.2021 Copy is enclosed, wherein under the same\nfacts and circumstances the Honble ITAT has held that\n\n“20. The ld. A/R has also drawn our attention on the approval of the Pr. CIT\nplaced at page Nos.7-8 of the paper book and also from the assessment record\nplaced before us, we found that he has given one consolidated approval of 56\ndifferent assessee's in one shot through one letter dated 29.03.2016 which is even\nnot signed by him but signed by ITO (T&J), who is not a competent authority to\ngive and signed the approval letter, which shows how the PR. CIT has acted in\nvery formal way. When we examined of the assessment record, it is gathered that\nthe approval was in photocopy and not in original or there was no original letter\nor documents of approval. Further the name of the assessee was at Sr. 46 out of\n56 assessee's and even there was no tick on the name of the assessee in the\napproval list, which creates a doubt that the approval has been received before\nthe issue of notice u/s 148 of the Act as the approval letter lying on the file after\nissuance of the notice u/s 148 or not before or attached with the notice u/s 148\nand may reach in the office of the AO after 31.03.2016. Thus, in our view,\napproval u/s 151 cannot be given of all the 56 assessee's in a single documents, as\nall assessee's are the independent and separate also the reason recorded are\ndifferent in each case and it is not possible that there shall be same reasons.\nLooking to these facts and record it is also held that the procedures and way of\napproval and satisfaction is not proper. Here AO initiated proceedings u/s.147\nr.w.s.148 on basis of information furnished and CIT gave approval without\napplying his mind in slipshod manner. As approval/sanction given by CIT was\nwithout recording his own independent satisfaction as noted above, therefore the\nreopening was not sustainable as per above judicial pronouncements and\nirregularities noted. There were clear irregularities and violation of the provision\nof Sec. 151 of the Act and very foundation of the issuance of the notice u/s 148\nwas not as per law. Then in that eventuality, we are of the view that the issuance\n\n23\nITA No. 654/JPR/2023\nMahendra Sharma vs. ITO .\n\nnotice 148 of the Act and all the consequent proceedings and assessment order\npassed was not in accordance with law. The case laws relied upon by the ld. DR\nare not tenable in the facts and circumstances of present case, therefore,\nconsidering the totality of facts and circumstances of the case as well as the\njudicial pronouncements qua the issue under consideration, we find merit in the\ncontention of the ld AR, therefore, we quash the proceedings U/s 147 of the Act.”\n\nThis has been recently followed by the Honble ITAT in the case of Smt. Prabhati Devi\nand Vimla Devi in ITA No.1031 & 1034/Jp/2024 dt. 01.10.2024.\n\nHere is the same position.\n\nPrayer: Hence in view of facts, circumstances, legal position of the law and our WS\nthe assessment may kindly be quashed and oblige.\"\n\n6.\nOn the contrary, the ld. D/R, to counter the above submissions of the ld.\nA/R, submitted the AO Report dated 15.01.2025, vide his letter20.01.2025 as\nunder :-\n\n“ Kindly refer to your letter no. Addl. CIT (Sr. DR-II/ITAT/JPR/2024-\n25/974 dated 09.01.2025 on the above mentioned subject. The comments/counter submission to\nthe written submission by the assessee is as under :\n\n2.\nReply of point No. 1 :- As per assessment record, notice u/s 143(2) has\nbeen issued on 17.10.2016 fixing the date of hearing on 21.11.2016. The assessee\nhas filed request for adjournment in response to the above notice on 27.09.2017\n(copy enclosed).\n\n3.\nReply of Point Nos.2.1 & 2.2 :- The contention of the assessee that the\nsignature of the AO in the notice u/s 143(2) dated 17.10.2016 and 24.11.2017 is\nnot mat6ching is childish, the undersigned has nothing to comment in this regard.\nFurther, the assessee is saying that there is no proof of service on the notice dated\n17.10.2016. The assessee is in receipt of the notice u/s 143(2) issued on\n17.10.2016 as in his reply dated 27.09.2017, he has mentioned notice u/s 143(2)\nin the subject (copy enclosed). Again notice u/s 143(2) was issued on 24.11.2017\n(copy enclosed).\n\nThe reply filed by the assessee on 27.09.2017 is in response to the notice\nu/s 143(2) issued on 17.10.2016 as he has mentioned notice u/s 143(2) in the\nsubject (copy enclosed).\n\n24\nITA No. 654/JPR/2023\nMahendra Sharma vs. ITO .\n\nThe contention of the assessee that entries in the order sheet has been\ninserted later is childish and imaginary.\n\n4.\nReply of point no. 3:- As per order sheet entry dated 17.11.2017, it is clear\nthat assessee was provided complete information in soft copy (copy enclosed).\nFurther, the case was reopened after obtaining the approval of competent\nauthority (copy enclosed).\n\n5.\nReply of point no. 4:- The approval has been given by Pr.CIT-2, Jaipur\nletter dated 27.09.2016. Though it has been signed by ITO (T&J), it is clearly\nmentioned in the letter that the proposal for taking remedial action u/s 147/148 of\nthe I.TR. Act, 1961, 1961 in the above mentioned case has been approved u/s 151\nof the I.T. Act, 1961 by the Pr. CIT-2, Jaipur (copy enclosed).\n\nFurther, the contention of the assessee regarding consolidated approval of\n6 assessee's through one letter is in vain as individual approval has been obtained\nin the form for obtaining sanction of the Pr.CIT-2, Jaipur for issue of notice u/s\n148 of the I.T. Act, 1961 (copy enclosed).\n\nThe Report is being submitted for your kind consideration and necessary\naction at your end.\"\n\n7.\nWe have heard the rival submissions, perused the orders of the lower\nauthorities and the paper book filed on behalf of the assessee. We have also\nconsidered the various decisions relied on by learned Counsels of both the sides. It\nis noted from the assessment order that the assessment was reopened by issuing\nnotice under section 148 on 28.09.2016 on the basis of an information received\nfrom the Directorate of Income-tax (Inv.) Kolkata vide letter dated 27.04.2015 that\nsurvey/search operation were conducted by the Investigation Wing of the\ndepartment in the case of Syndicate members\n(promoter of penny stock\ncompanies), share brokers and entry operators and the business of providing\naccommodation entries in the form of bogus LTCG was unearthed. A perusal of\n\n25\nITA No. 654/JPR/2023\nMahendra Sharma vs. ITO .\n\nrecord shows that the notice under section 143(2) dated 24.11.2017 was issued, but\nas contended by revenue that notice under section 143(2) dated 17.10.2016 was\nissued. But there is no dispatch number etc. is given on the notice itself. Further,\nthe ld. A/R submitted that when notice under section 143(2) had been issued on\n17.10.2016 then what was the necessity to issue notice under section 143(2) again\non 24.11.2017 and served the same on the assessee through order sheet. The\ncontention of the ld. A/R was that no notice under section 143(2) dated 17.10.2016\nwas issued to the assessee. The ld. D/R replied that the representative of the\nassessee has acknowledged the receipt of notice u/s 143(2) of the Act vide their\neffect. It is also noticed that Notice under section 143(2) dated 17.10.2016 was\nalleged to have been issued but there is no part about service of that notice. Even\nthat fact is not mentioned in the order sheet so produced. Thus, revenue did not\nsupport that in fact of notice under section 143(2) dated 17.10.2016 was issued to\nthe assessee. The ld. A/R submitted that the AO has not filed any counter affidavit\nin regard to the issuance of notice under section 143(2) dated 17.10.2016 as against\nthe affidavit filed by the counsel before us. It is mandatory on the part of the AO to\nissue notice under section 143(2) of the IT Act, 1961 within the stipulated time.\nThe CBDT circular No.549 dated 31/10/1989 (1990) 823 CTR (SC) (1) makes it\nabundantly clear that once an assessee does not receive a notice u/s 143(2) within\nthe period stipulated then such an assessee “can take it that the return filed by him\n\n26\nITA No. 654/JPR/2023\nMahendra Sharma vs. ITO .\n\nhas become final and no scrutiny proceedings are to be started in respect of that\nreturn”. The position emerges from this CBDT circular was referred to and clarified\nby Hon'ble Punjab and Haryana High Court in the case Vipan Khanna Vs. CIT\n(2002) 175 CTR (P&H) 335. The Hon'ble High Court referred the circular in this\ncase and observed that in case where the AO chose to verify the return and frame an\nassessment, he has to issue a notice u/s 143(2) of the Act requiring the assessee to\nproduce his books of accounts and other material in support of his return.\nThe Hon'ble Supreme Court in the case of ACIT & Anr vs. Hotel Blue Moon\n(2010) 229 CTR (SC) 219 has discussed in detail in respect of issue of notice u/s\n143(2) as under :-\n\n\"An analysis of this subsection indicates that, after the return is filed, this clause\nenables the Assessing Officer to complete the assessment by following the\nprocedure like issue of notice under section_143(2)/142 and_complete the\nassessment under section 143(3). This section does not provide for accepting the\nreturn as provided under section 143(1)(a). The Assessing Officer has to complete\nthe assessment under section 143(3) only. In case of default in not filing the\nreturn or not complying with the notice under section 143(2)/142, the Assessing\nOfficer is authorized to complete the assessment ex parte under section 144.\nClause (b) of section 158BC by referring to section 143(2) and (3) would appear\nto imply that the provisions of section 143(1) are excluded. But section 143(2)\nitself becomes necessary only where it becomes necessary to check the return, so\nthat where block return conforms to the undisclosed income inferred by the\nauthorities, there is no reason, why the authorities should issue notice under\nsection 143(2). However, if an assessment is to be completed under section 143(3)\nread with section 158BC, notice under section 143(2) should be issued within one\nyear from the date of filing of block return. Omission on the part of the assessing\nauthority to issue notice under section 143(2) cannot be a procedural\nirregularity and the same is not curable and, therefore, requirement of notice\nunder section 143(2) cannot be dispensed with.\" (emphasis added)\n\n27\nITA No. 654/JPR/2023\nMahendra Sharma vs. ITO .\n\n7.1\nThe ld. A/R submitted that copy of reasons recorded not supplied nor the\nobjections of the assessee was decided. In this regard, the ld. D/R submitted as\nunder:\n\n“ As per the order sheet entry dated 17.11.2017, it is amply clear that the assessee\nwas provided complete information in soft copy regarding the information\nreceived from Investigation wing, on the basis of which, the case was reopened.”\n\n7.2 On the contrary, the ld. A/R contradicted the submission of the ld. D/R by\nstatingthat from the reply it is very clear that the ld. AO/DR has admitted that no\nreason recorded has been provided to the assessee because the ld. AO had supplied\n\"the information received from Investigation wing\" and not the 'reasons recorded'\nbecause the Investigation Wing has neither recorded reasons nor the law has given\nthe power to them, the reasons are to be recorded by the Assessing Officer only.\nFurther the ld. AO/DR has not given any comments and proof that the objections\nof the assessee have been decided by passing a separate speaking order. On perusal\nof paper book, it is noticed that the assessee has raised objection vide letter dated\n04.05.2017 (PB page 32), 06.11.2017, 10.11.2017 and 18.12.2017 (PB pages 36-\n49). Thus the ld. D/R has failed to rebut the details filed by the assessee.\n\n28\nITA No. 654/JPR/2023\nMahendra Sharma vs. ITO .\n\nThe Coordinate Bench of the Tribunal, Jaipur in the case of Banwari Lal\nPareek vs. ITO in ITA No. 135/JP/2020 dated 27.07.2022 it has been held as under\n:\n\n\"2.3 We have heard both the parties and perused the material available on record. It is an\nadmitted fact that from the very beginning the assessee had been demanding the reasons\nrecorded and in this regard the reply dated 27-11-2017 (PBP 53-54) of the assessee\nwritten to the ITO, wherein the assessee had specifically asked and demanded the AO to\nprovide the reasons for issuance of Notice u/s 148 of the Act to the assessee. However,\nthe AO did not provide the same. In appeal before the ld. CIT(A), the assessee had\ncategorically raised the specific ground that the reasons recorded for reopening of the\nassessment was never supplied / provided to the assessee. However, the ld. CIT(A) had\nignored the said ground of the assessee and also did not deal with the specific ground\nraised by the assessee. In our view, the AO was bound to furnish reasons recorded by him\nwithin a reasonable time as has been held by the Hon'ble Supreme Court in the case of\nGKN Driveshafts (India) Ltd. vs ITO (supra) wherein the Hon'ble Court held as\nunder:-\n\n‘’5. We see no justifiable reason to interfere with the order under challenge.\nHowever, we clarify that when a notice u/s 148 of the Income Tax Act is issued,\nthe proper course of action for the noticee is to file return and he so desires, to\nseek reasons for issuing notices. The Assessing Officer is bound to furnish\nreasons within a reasonable time. On receipt of reasons, the noticee is entitled to\nfile objections to issuance of notice and the assessing officer is bound to dispose\nof the same by passing a speaking order. .In the instant case, as the reasons have\nbeen disclosed in these proceedings, the assessing officer has to dispose of the\nobjections, if filed, by passing a speaking order, before proceeding with the\nassessment in respect of the above said five assessment years.”\n\nAs per record, since the reasons recorded for reopening of the assessment were not\nfurnished to the assessee till the completion of the assessment, therefore, in our\nconsidered view, the reassessment order in these circumstances of the case, cannot be\nupheld. For reaching this conclusion, we draw strength from the decision of Hon'ble\nBombay High Court in the case of CIT vs Videsh Sanchar Nigam Ltd (2012) 340 ITR 66\nwherein Hon'ble Bombay High Court had categorically held that since the reasons\nrecorded for reopening of the assessment were not furnished to the assesse till the\ncompletion of the assessment then reassessment order cannot be upheld and thus\n\n29\nITA No. 654/JPR/2023\nMahendra Sharma vs. ITO .\n\ndismissed the appeal filed by the Revenue. Even in the case of CIT vs Trend\nElectronics reported in (2015) 379 ITR 456, Hon'ble Bombay High Court has\ncategorically held as under:-\n\n''Income Tax Act 1961 Section 147 and 148 Reopening of assessment validity of\nNotice Objections - Recording of reasons and furnishing of reasons to be strictly\ncomplied with – Failure on part of assessee to furnish reasons recorded to assessee when\nsought for - Reassessment not valid – Quashed – Appeal dismissed."\n\nFurther, the Honble Rajasthan High Court in the case of M/s K.C.\nMercantile V/s DCIT Circle-2, Jaipur in DBIT No. 292/2016 dt. 07.11.2017 it has\nbeen held that\n\n"Before proceeding with the matter, it is not out of place to mention that the law declared\nby the Supreme Court in GKN Driveshafts (supra) clearly held that the preliminary\nobjection is to be decided as the first, it cannot be decided subsequently. The argument\nwhich has been canvassed by the assessee is required to be considered very seriously\nmore particularly in view of the observations made by the Supreme Court in the case of\nKSS Petron Private Ltd (supra) which is followed in Hotel Blue Moon (supra), the\nlaw declared by the Supreme Court is taken in true spirit whether it will open a second\ninning in his own. Section 153(3) is to be read very cautiously as 153 powers are given to\nthe Department, the Court has to look into whether the law declared by the Supreme\nCourt is given away or protected. In the present case, as the Assessing Officer has\nclearly ignored the law declared by the Supreme Court, in that view of the matter, the\nissues which are raised in the matter, the Tribunal ought not to have remitted back for\nreassessment since period of limitation has already expired as the authority will get\nextended time of limitation beyond 9 months which is not the object of the Income Tax\nAct.\n\nIn that view of the matter, on issue No. 1 and 2, the order of reassessment passed by the\nTribunal is declared null and void. The questions are answered in favour of assessee and\nagainst the Department."\n\n30\nITA No. 654/JPR/2023\nMahendra Sharma vs. ITO .\n\nThus on the above legal position of law the notice under section 148 or\nproceedings under section 147/148 and consequent assessment order liable to be\nquashed.\n\n7.3\nFurther, a perusal of the approval given by the Joint Commissioner shows\nthat he has given approval by observing as under as per clause 12 of the proforma\n:-\n\n“Yes, Recommended for Reopening.\"\n\nSimilarly, the Pr. CIT-2 Jaipur while giving his approval has observed as under :\n\n\"Yes, I am satisfied.\"\n\nA perusal of the above shows that the superior authorities have not applied their\nmind and had given approval in a mechanical manner. It has been held in various\ndecisions that reopening of the assessment on wrong set of facts makes such\nreopening a nullity.\n\nFurther, the ld. Pr. CIT/JCIT has given one consolidated approval of 6/2 assessee's\nthrough one letter dated 27.09.2016 and this show how the Pr. CIT/JCIT has acted\nin formal way. On perusal of the assessment record and documents it is found that\nthe approval was not in original letter or documents. The document of approval\nletter was in the photocopy, further the approval letter was not signed by the ld.\nPr.CIT but by the ITO(T&J). How the approval of all the 6 different assessees can\nbe given in one documents, when all are the independent or separate assessee and\n\n31\nITA No. 654/JPR/2023\nMahendra Sharma vs. ITO .\n\nreasons are different. Thus it all shows how the wrong and illegal manner has been\nadopted by all the authorities. On this preposition and issue reference is drawn to\nthe decision of the Coordinate Bench of the Tribunal, Jaipur in the case of Sh.\nSatya Naraya Bairwa v/s ITO in ITA No. 867 & 869/Jp/2018 dated 15.09.2021,\nwherein under the same facts and circumstances, the Coordinate Bench of Jaipur\nhas held as under :-\n\n“20. The ld. A/R has also drawn our attention on the approval of the Pr. CIT\nplaced at page Nos.7-8 of the paper book and also from the assessment record\nplaced before us, we found that he has given one consolidated approval of 56\ndifferent assessee's in one shot through one letter dated 29.03.2016 which is even\nnot signed by him but signed by ITO (T&J), who is not a competent authority to\ngive and signed the approval letter, which shows how the PR. CIT has acted in\nvery formal way. When we examined of the assessment record, it is gathered that\nthe approval was in photocopy and not in original or there was no original letter\nor documents of approval. Further the name of the assessee was at Sr. 46 out of\n56 assessee's and even there was no tick on the name of the assessee in the\napproval list, which creates a doubt that the approval has been received before\nthe issue of notice u/s 148 of the Act as the approval letter lying on the file after\nissuance of the notice u/s 148 or not before or attached with the notice u/s 148\nand may reach in the office of the AO after 31.03.2016. Thus, in our view,\napproval u/s 151 cannot be given of all the 56 assessee's in a single documents, as\nall assessee's are the independent and separate also the reason recorded are\ndifferent in each case and it is not possible that there shall be same reasons.\nLooking to these facts and record it is also held that the procedures and way of\napproval and satisfaction is not proper. Here AO initiated proceedings u/s.147\nr.w.s.148 on basis of information furnished and CIT gave approval without\napplying his mind in slipshod manner. As approval/sanction given by CIT was\nwithout recording his own independent satisfaction as noted above, therefore the\nreopening was not sustainable as per above judicial pronouncements and\nirregularities noted. There were clear irregularities and violation of the provision\nof Sec. 151 of the Act and very foundation of the issuance of the notice u/s 148\nwas not as per law. Then in that eventuality, we are of the view that the issuance\n\n32\nITA No. 654/JPR/2023\nMahendra Sharma vs. ITO .\n\njudicial pronouncements qua the issue under consideration, we find merit in the\ncontention of the ld AR, therefore, we quash the proceedings U/s 147 of the Act.”\n\nThe above cited decision has also been recently followed by the ITAT Jaipur\nBench in the cases of Smt. Prabhati Devi and Vimla Devi in ITA No.1031 &\n1034/Jp/2024 dated 01.10.2024.\n\n7.4 Looking to these facts discussed above and material on record, it is also held\nthat the procedures and way of approval and satisfaction is not proper. Here, the\nAO initiated proceedings under section 147 read with section 148 on basis of\nborrowed information received from the Directorate of Investigation, Kolkata,\nwithout verifying the correctness of the information and the ld. PCIT gave\napproval without applying his mind in slipshod manner. As approval/sanction\ngiven by ld. PCIT was without recording his own independent satisfaction as noted\nabove, therefore, the reopening was not sustainable as per above judicial\npronouncements and irregularities noted. Thus, in that eventuality, we are of the\nview that the issuance of notice under section 148 of the IT Act and all the\nconsequent proceedings and assessment order passed was not in accordance with\nlaw. The case laws relied upon by the ld. D/R are not tenable in the facts and\ncircumstances of the present case, therefore, considering the totality of facts and\ncircumstances of the case as well as the judicial pronouncements qua the issue\nunder consideration, we find merit in the contention of the ld. A/R, therefore, we\n\n33\nITA No. 654/JPR/2023\nMahendra Sharma vs. ITO .\n\nquash the proceedings under section 147 of the Act, on the various infirmity\nobserved hereinabove.\n\n8.\nSince the assessee succeeds on the legal grounds, the grounds challenging\nthe addition on merit are not being adjudicated being academic in nature.\n\n9.\nIn the result, the appeal of the assessee is allowed.\n\nOrder pronounced in the open court on 25/03/2025.\n\nSd/-\n(राठोड कमलेश जयन्तभाई )\n(RATHOD KAMLESH JAYANTBHAI)\nलेखा सदस्य / Accountant Member\nजयपुर/ Jaipur\nदिनांक/ Dated:- 25/03/2025\n*Santosh\n\nSd/-\n(डॉ.एस.सीतालक्ष्मी)\n(Dr. S. Seethalakshmi)\nन्यायिक सदस्य / Judicial Member\n\nआदेश की प्रतिलिपिअग्रेषित /