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Facts
The assessee filed appeals for assessment years 2015-16 to 2017-18, challenging reassessment proceedings. The reassessments were based on information suggesting the assessee received accommodation entries in shares of Toyam Industries Ltd., which the Assessing Officer believed to be bogus.
Held
The Tribunal held that the reassessment proceedings for AY 2015-16 and 2016-17 were invalid due to the Assessing Officer's non-application of mind and recording of factually incorrect reasons. For AY 2017-18, the Tribunal found the reassessment invalid due to lack of proper approval as per Section 151 and being barred by limitation.
Key Issues
Validity of reassessment proceedings due to non-application of mind and incorrect reasons, and for AY 2017-18, due to improper approval and limitation.
Sections Cited
147, 148, 10(38), 68, 148A(b), 148A(d), 151
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ORDER PER OM PRAKASH KANT, AM
These three appeals by the assessee are directed against three separate orders, passed by the Learned Commissioner of Income Tax(Appeals) – National Faceless Appeal Centre, Delhi [in short ‘the Ld. CIT(A)’] for Assessment Year (in short A.Y) 2015-16 to Assessment Year 2017-18 respectively. On merit common dispute is Kalpana Ramesh Jain Vs. Deputy 2 Commissioner of Income Tax to 4597/MUM/2025 involved in these appeals and therefore same were heard together and disposed of by way of its consolidated order for sake of convenience.
2. Firstly, we take up the appeal of the assessee for assessment year 2015-16.
2.1 Briefly stated, the facts of the case are that the assessee, an individual, filed her return of income for the year under consideration declaring a total income of ₹24,72,640/-. The returned income included a sum of ₹63,24,872/- claimed as exempt under section 10(38) of the Income-tax Act, 1961 (hereinafter referred to as “the Act”).
2.2 Subsequently, based on information available on the Income Tax Business Application (ITBA) Portal alleging that the assessee had traded in the shares of Toyam Industries Ltd., a company purportedly managed by accommodation entry providers, the Assessing Officer recorded reasons to believe that income chargeable to tax had escaped assessment. Accordingly, notice under section 148 of the Act was issued on 31.03.2021 2.3 In response thereto, the assessee filed a return of income on 22.04.2021 reiterating the income originally declared. Statutory notices were thereafter issued and objections raised by the assessee against the reopening were disposed of. Upon completion of Kalpana Ramesh Jain Vs. Deputy 3 Commissioner of Income Tax to 4597/MUM/2025 reassessment proceedings under section 147 of the Act on 31.03.2022, the Assessing Officer treated the sale consideration received on sale of shares of Toyam Industries Ltd. amounting to ₹63,77,600/- as unexplained cash credit under section 68 of the Act.
2.4 On appeal, the assessee assailed both the validity of the reassessment proceedings as well as the addition on merits. The learned Commissioner of Income Tax (Appeals), however, rejected the objections of the assessee on both counts. Aggrieved thereby, the assessee is in appeal before the Tribunal raising the grounds reproduced hereinabove.
3. Before us, the Learned Counsel of the assessee filed a paper book containing pages 1-73.
Addressing ground nos. 1 and 2, which challenge the validity of the reassessment proceedings, the learned counsel for the assessee submitted that the reopening is founded on reasons which are factually incorrect, vague, and mechanically recorded, and therefore fail to satisfy the statutory requirement of “reason to believe” as contemplated under section 147 of the Act. It was contended that the entire reassessment proceedings are without jurisdiction and liable to be quashed.
Kalpana Ramesh Jain Vs. Deputy 4 Commissioner of Income Tax to 4597/MUM/2025 4.1 It was further submitted that the recorded reasons erroneously describe the assessee as a “company”, whereas the assessee is admittedly an individual. This fundamental factual error, according to the learned counsel, goes to the root of the matter and clearly demonstrates that the reasons were recorded without verification of basic facts. Such casual and incorrect recording of reasons evidences complete non-application of mind, rendering the assumption of jurisdiction under section 147 unsustainable in law. 4.2 The learned counsel further pointed out that while the reasons recorded allege that the assessee herself was an accommodation entry provider, the assessment order proceeds on an entirely different premise by treating the assessee as a beneficiary of accommodation entries allegedly provided by a third party. This inherent contradiction, it was submitted, shows that the very foundation for reopening did not survive during the reassessment proceedings. Once the basis for reopening fails, the reassessment cannot be sustained in law. 4.3 It was also contended that the reopening is based on borrowed satisfaction, as the Assessing Officer merely reproduced information allegedly received from external sources without any independent examination or formation of belief on the facts of the assessee’s case. The shifting stand of the Assessing Officer—from treating the Kalpana Ramesh Jain Vs. Deputy 5 Commissioner of Income Tax to 4597/MUM/2025 assessee as an accommodation entry provider to treating her as a beneficiary—further demonstrates the absence of a valid and coherent belief regarding escapement of income. 4.4 It was submitted that since the reasons recorded themselves suffer from factual inaccuracies and non-application of mind, the sanction obtained for reopening is equally vitiated. A mechanical approval based on erroneous reasons cannot cure the inherent jurisdictional defect and defeats the statutory safeguard built into the Act. 4.5 In view of the above facts and circumstances, the counsel for assessee submitted that the reopening of the assessment suffers from serious legal infirmities such as non-application of mind, factual inaccuracies, internal contradictions, and absence of valid "reason to believe". Therefore, the initiation of proceedings under section 147 and the consequent reassessment order are illegal, invalid, and bad in law, and deserve to be quashed.
4.6 Per contra, the learned Departmental Representative submitted that the reference to the assessee as a company instead of an individual is a trivial clerical error, curable under section 292BB of the Act. It was further submitted that the assessee was a beneficiary of bogus accommodation entries, and therefore the allegation of non-application of mind by the Assessing Officer is misconceived and deserves to be rejected.
Kalpana Ramesh Jain Vs. Deputy 6 Commissioner of Income Tax to 4597/MUM/2025
We have carefully considered the rival submissions and perused the material placed on record. Since the challenge before us goes to the very assumption of jurisdiction under section 147 of the Act, it is necessary to examine the reasons recorded by the Assessing Officer, which are placed at pages 4 to 5 of the paper book and have been reproduced hereinabove for ready reference:
“Subject: Reasons for reopening u/s 143 (3) r.w.s 147 The case was reopened for action u/s 148. The reasons for reopening are given below: - The Income Department has collected information about taxpayers from various sources such as Annual Information Return (AIR), Central Information Branch (CIB). Tax Deduction at Source (TDS) Statement and information uploaded by Investigation Wings/Central Circle/1 & Cl on Insight Portal. As per the information summary available in Insight Portal, the following information relating to Assessment Year 2015-16 pertains to the assessee company individual.
Sr. Source of PAN Source of PAN Informatio Information Information No Name Name n F.Y. Type Value . 1 AAACC0823E Toyam 2014-15 Information 63,77,600/- of Industries Ltd beneficiaries of bogus LTCG/STCL
As the above mentioned bogus entities managed, controlled and operated by M/s KALPANA RAMESH JAIN for providing bogus accommodation entries, hence, all the transactions entered into between the above mentioned entities and the assessee /beneficiary are bogus accommodation entries in nature. Considering the above facts of the case and after careful application of mind I am satisfied that Rs. More than 1 lakh
Kalpana Ramesh Jain Vs. Deputy 7 Commissioner of Income Tax to 4597/MUM/2025 received by the assessee in lieu of accommodation entries are not genuine transaction. From the information received from Insight Portal, the undersigned comes to conclusion that assesse has taken unexplained credits/bogus accommodation entries. The undersigned has carefully applied the mind to the above information. The information so received gives a substantial basis for the formation of a reason to believe to initiate re assessment proceedings, u/s147 of the Act. Further, there is no doubt on the fact that the above amounts to "income chargeable to tax and the benefit so arising to the assesse should have been offered to tax Further, this is fresh information received by the undersigned, there is an escapement of assessment of such income. Also, the above received information and this modus operandi was not in the possession of the undersigned earlier SHAILENDRA DAMODAR SURYAVANSHI WARD 4(3)(1), MUMBAI (in case the document is digitally signed please refer Digital Signature at the bottom of the page) 5.1 On a plain reading of the recorded reasons, it is evident that the Assessing Officer proceeded on the premise that Toyam Industries Ltd. was a bogus entity managed, controlled, and operated by the assessee. However, the undisputed factual position is that Toyam Industries Ltd. is a corporate entity whose shares were allegedly manipulated by certain operators, and not by the assessee herself. This fundamental misconception of facts clearly demonstrates that the Assessing Officer misunderstood the very nature of the information available with him.
5.2 Though the reopening was triggered on the basis of information allegedly received from the Investigation Wing and Kalpana Ramesh Jain Vs. Deputy 8 Commissioner of Income Tax to 4597/MUM/2025 available on the income-tax portal, the Assessing Officer failed to apply his independent mind to the specific facts of the assessee’s case. Significantly, in paragraph 1 of the assessment order, the Assessing Officer himself proceeds on a footing inconsistent with the reasons recorded for reopening. Such inconsistency strikes at the root of the assumption of jurisdiction.
5.3 Once it is found that the reopening was founded on an erroneous understanding of facts and suffers from non-application of mind, the very initiation of proceedings under section 147 of the Act becomes invalid. The law is well settled that jurisdiction under section 147 cannot be assumed on the basis of vague, incorrect, or mechanically recorded reasons.
5.4 In view of the foregoing discussion, we hold that the reassessment proceedings in the case of the assessee are unsustainable in law and deserve to be quashed. Accordingly, ground nos. 1 and 2 raised by the assessee are allowed.
Since we have already quashed the re-assessment proceeding the grounds raised by the assessee on the merit are rendered merely academic and therefore we are not adjudicating upon the same.
Now we take up the appeal of the assessee for assessment year 2016-17. In the year under consideration also identical reasons
Kalpana Ramesh Jain Vs. Deputy 9 Commissioner of Income Tax to 4597/MUM/2025 have been recorded by the Assessing officer except change of the quantum, which in this case is Rs.50,37,922/-. Therefore, following our finding in the assessment year 2015-16, the ground challenging the validity of the re-assessment in the year under consideration are allowed in favour of the assessee. The ground in relation to merit being rendered academic, same are not required to be adjudicated upon.
Now we take up the appeal of the assessee for Assessment year 2017-18. In the present case, reassessment proceedings were initiated and completed under the amended provisions of section 148 of the Income-tax Act, 1961. On the basis of information suggesting that the assessee had obtained accommodation entries, the Assessing Officer issued a notice under section 148A(b) of the Act and thereafter passed an order under section 148A(d) on 27.07.2022, followed by issuance of notice under section 148 of the Act. The reassessment was ultimately completed on 06.05.2023.
8.1 On further appeal, the Learned CITA rejected the ground challenging the validity of the re-assessment observing as under:
“7.2. In her submission, the appellant has assailed the notice u/s 148 as without the valid approval of specified authority. The appellant cites that the notice was not approved by a CCIT level officer. The appellant's contention is that Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020, (TOLA) could have relaxed time period for issuance of notice u/s 148 from 31.03.2021 to 30.06.2021 but stipulation of corresponding approval u/s 151 was not relaxed and a notice dated 29.06.2021 being beyond three years from Kalpana Ramesh Jain Vs. Deputy 10 Commissioner of Income Tax to 4597/MUM/2025 the end of the A.Y. 2017-18 should have been approved by CCIT level officer rather than a PCIT. 7.3. The appellant has cited the decision of jurisdictional High Court in the case of "Siemens Financial Services Pvt. Ltd. reported in 457 ITR 647 dated 25.08.2003 in her support. However, the information in the public domain shows that in the said decision in 'Siemens (supra) cited by the appellant has been set aside by the Hon'ble Supreme Court in the case of Union of India vs. Rajeev Bansal [2024] 167 taxmann.com 70 (SC)/[2024] 301 Taxman 238 (SC)/[2024] 469 ITR 46 (SC)[03-10-2024] therefore, the decision cited by the appellant is not a good law. Rather, the decision of Hon'ble Supreme Court in Rajeev Bansal (supra) is the law to be complied with, particularly in the case such as the present one. 7.4. The undisputed facts in the present case are as follows. The matter pertains to A.Y. 2017-18. Originally, the notice u/s 148 was issued on 29.06.2021. Such period is within the extended time of 30.06.2021. where otherwise issuance of notice was getting time barred by 31.03.2021. Such time was extended by Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020, (TOLA). By the virtue of Hon'ble Supreme Court's decision in the case of Union of India vs. Ashish Agarwal dated 04.05.2022 [(2022) SCC online SC 543] and pursuant instruction of the CBDT vide Instruction No. 01/2022 dated 11.05.2022 such notice dated 29.06.2021 was came to be treated as notice u/s 148A(b) and the AO was stipulated to pass an order u/s 148A(d) (i.e. as per the stipulation of the amended provisions of reassessment in effect from 01.04.2021). Accordingly, the AO has passed an order u/s 148A(d) on 27.07.2022 and also a fresh notice u/s 148 has been issued on 27.07.2022. Both the order u/s 148A(d) and notice u/s 148 are approved by PCIT-4, Mumbai on 21.07.2022. Such factum is recorded in the assessment order, as follows: “14. The necessary approval for passing order u/s. 148A(d) and issuance of notice u/s 148 has been taken from Pr. CIT-4 Mumbai vide approval No/Pr.CIT-4/148A(d)/Approval/2022-23 dtd.21.07 2022 as per the provisions of section 151(i) read with Para 6.2(ii) of instruction No.01 of 2022 dated 11.05.2022….” 7.5. Thus, in the present case there is no dispute about compliance to decision of Hon'ble Supreme Court in the case of Ashish Agarwal (supra), issuance of original notice u/s 148,
Kalpana Ramesh Jain Vs. Deputy 11 Commissioner of Income Tax to 4597/MUM/2025 which was came to be treated as notice u/s 148A(b), and adherence to procedure which required issuance of order u/s 148A(d) and issuance of fresh notice u/s 148. The dispute raised by the appellant on this issue boils down to the factum of approval. The appellant had relied on decision of Hon'ble Bombay High Court in the case of Siemens Financial Services Pvt. Ltd. reported in 457 ITR 647 dated 25.08.2003 which is not a good in view of the Hon'ble Supreme Court's decision in the case of Rajiv Bansal (supra). The Hon'ble Supreme Court clearly decided the matter by holding that: "Section 151, mad with section 148A, of the income-tax Act, 1961 and section 3 of the Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act. 2020 Income escaping assessment (Sanction for issue of notice) Assessment years 2013-14 to 2017-18-Whether section 3(1) of TOLA relaxes time limit for compliance with actions that fall for completion from 20 March 2020 to 31 March 2021 and TOLA will accordingly extend time limit for grant of sanction by authority specified under section 151 Held yes Whether in case of section 151 of new regime if time limit of three years from end of an assessment year falls between 20 March 2020 and 31 March 2021, then specified authority under section 151(i) has an extended time till 30 June 2021 to grant approval - Held, yes - Whether in case of section 151 of old regime, if time limit of four years from end of an assessment year falls between 20 March 2020 and 31 March 2021, then specified authority under section 151(2) has time bill 31 March 2021 to grant approval-Held, yes" (emphasis applied) 7.6. The present case pertains to A.Y. 2017-18 and therefore the issue is squarely covered by the Hon'ble Supreme Court's decision in Rajeev Bansal (supra). In this case, the notice u/s 148 is therefore valid and approved as per the stipulation of section 151(1). Therefore, the ground no. 1 in the original grounds and also the ground no. 1 in the additional grounds are dismissed.”
Before us, the learned counsel for the assessee assailed the validity of reopening on the ground that the reassessment proceedings are barred by limitation.
Kalpana Ramesh Jain Vs. Deputy 12 Commissioner of Income Tax to 4597/MUM/2025 9.1. The learned counsel placed on record a chart computing the limitation period in light of the judgment of the Hon’ble Supreme Court in the case of Rajeev Bansal reported in 167 taxmann.com 70 (SC), which is tabulated as under:-
Particulars Days Date upto which notice can be issued 31.03.2021 under the amended provision of section 148 Add: Period extended by TOLA (01.04.2021 till 90 days 30.06.2021) Add: Period stayed by Ashish Agarwal order 307 days (01.07.2021 till 03.05.2022) Add: Period till date of issuance of notice u/s 28 days 148A(b)-31.05.2022 Add: Period till which assessee has Filed its 9 days reply-09.06.2022 Add: Difference of days between issue of 1 day notice under old provision upto 31.05.2021 10.06.2022 Date upto which the notice u/s 148 (new provision) should have been issued 9.2 The ld Counsel submitted that going by the decision of Hon’ble Supreme Court in the case Rajeev Bansal (supra), the date upto which the notice u/s 148 (new provision) should have been issued is 10.06.2022, however in the present case the notice were issued on 27.07.2022.
9.3 It is Submitted that after considering all days exclusion as referred in the case of Rajeev Bansal, the last date upto which the notice under section 148 (new provision) should have been issued is Kalpana Ramesh Jain Vs. Deputy 13 Commissioner of Income Tax to 4597/MUM/2025 10.06.2022. Accordingly, it is the notice dated 27.07.2022 issued by the Id. AO is barred by the limitation making the entire reassessment proceedings as void-ab-inito. 9. 4 In this regard, he placed reliance on the decision of Hon'ble Mumbai tribunal in the case of Abdul Salam Mohamed Yasin Vs DCIT bearing where Tribunal after considering the decision of Hon'ble Supreme Court in case of Rajeev Bansal (Supra) has allowed the appeal of the assessee for AY 2017- 18 and annulled the reassessment proceedings on jurisdictional grounds, holding that the notice issued under section 148 was barred by limitation. 9.5 In view of the above, the ld Counsel submitted that the notice is by the Id. AO u/s 148 dated 27.07.2022 is time barred and bad in law thereby making the entire assessment proceedings as void- ab-inito. We therefore humbly request your honour that the reassess order passed by the Id. AO may kindly be quashed for the detailed reason as stated above. Once the reopening itself is bad in law, the issues on merits doesn't arise.
9.6 Without prejudice, it was further argued that since more than three years had elapsed from the end of the relevant assessment year, the mandatory approval ought to have been obtained from the Principal Chief Commissioner of Income Tax or the Chief Commissioner of Income Tax. Admittedly, approval was obtained
Kalpana Ramesh Jain Vs. Deputy 14 Commissioner of Income Tax to 4597/MUM/2025 only from the Principal Commissioner of Income Tax, which does not satisfy the statutory requirement under section 151 of the Act. Hence, the reassessment proceedings are liable to be quashed on this ground as well.
9.7 The learned Departmental Representative could not controvert the factual position that approval for issuance of notice under section 148 was accorded by the Principal Commissioner of Income Tax-4, Mumbai vide reference dated 21.07.2022.
9.8 We have heard rival submissions of the parties and perused the relevant material on record. Section 151 of the Act mandates prior approval of the specified authority before issuance of notice under section 148A(b) as well as notice under section 148. For cases where more than three years have elapsed from the end of the relevant assessment year, the statute clearly requires approval of the Principal Chief Commissioner of Income Tax or the Chief Commissioner of Income Tax.
9.9 In the present case, it is undisputed that both the order under section 148A(d) and the notice under section 148 dated 27.07.2022 were issued after obtaining approval from the Principal Commissioner of Income Tax, as evident from pages 10 and 11 of the paper book and the notice itself. For ready reference copy of the said notice u/s 148 is reproduced as under:-
Kalpana Ramesh Jain Vs. Deputy 15 Commissioner of Income Tax to 4597/MUM/2025
“Information which requires action in consequence of the judgement of the Hon'ble Supreme Court in the case Union of India Vs. Ashish Agarwal, Civil Appeal 3005/2022, dated 4th May, 2022 suggesting that income chargeable to tax has escaped assessment within the meaning of section 147 of the Act. Order under sub-section (d) of section 148A of the Act has been passed in such case vide DIN ITBA/COM/F/17/2022- 23/1044144402(1) dated 27.07.2022 and annexed herewith for reference.
(B) I have information that a search was initiated under section 132 of the Act in your case or in the case of the person in respect of which (C) I have information that books of accounts, other documents or any assets have been requisitioned under section 132A of the Act in your case or in the case of the person in respect of which you are assessable under the Act.
(D) I am satisfied, with the approval of Principal Commissioner or Commissioner, that money, bullion, jewellery or other valuable article or thing, seized or requisitioned under section 132 or section 132A of the Act in case of _______ relate to you or the person in respect of which you are assessable under the Act.
(E) I am satisfied, with the approval of Principal Commissioner or Commissioner, that books of accounts or documents, seized or requisitioned under section 132 or section 132A of the Act in case of _____ pertains or pertain to or any information contained therein, relate to you or the person in respect of which you are of assessable under the Act.
I, therefore, propose to assess or reassess such income or allowance and 1, recompute the loss or the depreciation allowance or any other allowance or deduction for the Assessment hereby, require you to furnish, within 30 days from Kalpana Ramesh Jain Vs. Deputy 16 Commissioner of Income Tax to 4597/MUM/2025
the service of this notice, a return in the prescribed form for the Assessment Year 2017-18.
This notice is being issued after obtaining the prior approval of the Pr. Commissioner of Income tax-4, Mumbai accorded on date 21.07.2022 vide Reference No. Pr. CIT-4/148A(d)/Approval/2022-23.”
9.10 In view of the statutory mandate of section 151 and the interpretation laid down in the case Abdul Salam Mohamed Yasin Vs DCIT the approval obtained from an authority lower than the one prescribed under the Act vitiates the assumption of jurisdiction itself. Once the jurisdictional foundation of reassessment is found to be defective, the entire reassessment proceedings are rendered unsustainable in law.
9.11 The ground No.1 of the appeal of the assessee is allowed.
since the re-assessment proceeding has already been quashed by us we are not required to adjudicate upon the merit of the issued in dispute according the relevant grounds are rendered.
In the result all the three appeals of the assessee are allowed.