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Facts
The assessee's appeal pertains to an assessment order passed under section 147 r.w.s. 144 of the Income-tax Act, 1961, where credit entries in the bank account were treated as unaccounted business income. The Commissioner of Income-tax (Appeals) had set aside the assessment order for de novo adjudication.
Held
The Tribunal condoned the 142-day delay in filing the appeal, referring to judicial precedents on sufficient cause. The tribunal also noted that the ground regarding the invalidity of reassessment proceedings due to lack of proper sanction under section 151 was raised for the first time. Considering the matter was set aside by the CIT(A), this ground was allowed for statistical purposes.
Key Issues
Validity of reassessment proceedings initiated without proper sanction under Section 151; condonation of delay in filing appeal.
Sections Cited
147, 148, 144, 151, 144B
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Before: SHRI ANIKESH BANERJEE & SHRI PRABHASH SHANKAR
PER PRABHASH SHANKAR [A.M.] :- The present appeal arising from the appellate order dated 20.02.2025 is filed by the assessee against the order passed by the Learned Commissioner of Income-tax (Appeals)/National Faceless Appeal Centre, Delhi [hereinafter referred to as “CIT(A)"] pertaining to assessment order passed u/s. 147 r.w.s. 144 of the Income-tax Act, 1961 [hereinafter referred to as “Act”] dated 24.05.2023 for the Assessment Year [A.Y.] 2016-17. Page 2 A.Y. 2016-17 Rattan Jodharam Harchwani
The grounds of appeal are as under:
On the facts and in the circumstances of the case and also in law, the assessment order passed by the learned assessing officer under section 147 r.w.s.144 of the Act is bad in law.
On the facts and under circumstances of the case and also in law, the learned Commissioner of Income Tax (Appeals), NFAC, has erred in setting aside the order to the records of assessing officer for fresh adjudication.
On the facts and under circumstances of the case and also in law, the Learned Assessing Officer is not justified in treating the credit entries of Rs. 11,68,30,662/ appearing in the Bank Account as unaccounted business income and by making an addition of Rs. 11,68,30,662/- to the total income.
It was noticed at the outset that the instant appeal is delayed by 142 days. The assessee has submitted an application for condonation of delay alongwith an affidavit of the assessee stating that the delay occurred on account of inadvertence on the part of the appellant's Chartered Accountant/his office and there was no deliberate delay or malafide on the part of the appellant. Hence, it is requested that the delay may be condoned and the appeal be admitted and heard. In this regard, the Hon'ble Tribunal's attention is invited to the Hon'ble Bombay High Court's decision rendered in the case of Vijay Vishin Meghani V. Dy. CIT, Circle-23(2), Mumbai 398 ITR 250 (Bom) wherein it has been held that an assessee can be held at fault only if, the assessee Page 3 A.Y. 2016-17 Rattan Jodharam Harchwani has intentionally or deliberately delayed the matter and has no bonafide or reasonable explanation for the delay. The ld.DR has however, objected to the condonation application.
1 On careful consideration of the submissions of the assessee, we are of the considered opinion that the delay in filing of the appeal was not intentional. In this connection, reliance could be placed on the landmark decision of hon'ble Supreme Court which inter alia held in Collector, Land Acquisition v Mst. Katiji And Others- 167 ITR 471 (SC) that “ordinarily, a litigant does not stand to benefit by lodging an appeal late........Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated....Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.... A litigant does not stand to benefit by resorting to delay. In fact, he runs serious risk.” We therefore, condone the delay.
Facts of the case as per the assessment order are that the Assessing Officer received an information that the assessee had deposited cash of Rs 4.36 cr. in his bank account with Konark Urban Page 4 A.Y. 2016-17 Rattan Jodharam Harchwani Coop. Bank, Ulhasnagar from 07.11.2013 to 20.04.2015.No return of income was filed. It is further stated by the AO hat based on certain search and seizure action by the Investigation unit, Mumbai in respect of penny stock and entry operators in many scrips, large number of bank accounts were found belonging to various persons which were part of this activity. The assessee was found to be having one of such bank accounts in which above stated deposit was made. No return was filed in response to the notice u/s 148 also. The assessee made a written submission denying owning any such bank account stating that he was a man of limited means. The bank account was operated without his knowledge. The AO however, did not entertain the reply and went on to treat a sum of Rs 11.68 cr. found deposited in the said bank account as unexplained and the assessment order was passed invoking provisions of section 144 of the Act.
In the subsequent appeal, the assessee contested the reopening as well as order passed u/s 144 of the Act was not valid. However, as no return was filed and no compliance was made leading to framing of ex parte assessment order by the AO, the ld.CIT(A) set aside the assessment order to the file of the AO for framing it de novo after allowing adequate opportunity of hearing to the assessee. Page 5 A.Y. 2016-17 Rattan Jodharam Harchwani
Before us, the ld.AR has claiming that the assessment order was null and void as the AO did not take proper sanction before taking action u/s 148 of the Act. A perusal of the chronology of events and the notice dated 26.07.2022 issued u/s 148 of the act would reveal that the notice has been issued after the expiry of three years from the end of the assessment year and therefore the approval u/s 151 had to be obtained from Principal Chief Commissioner. However, in the instant case same had been obtained from the Pr. Commissioner of Income tax. In this regard, attention is invited to the Hon'ble co-ordinate Bench's decision rendered in the case of Manish Financial ITA No 5050/Mum/2024 wherein after referring to the Hon'ble Supreme Court's decision rendered in the case of Rajeev Bansal 167 taxmann.com 70 (SC), it has been held that the notice u/s 148 for A.Y. 2016-17 is issued without obtaining the prior approval from the appropriate authority is invalid and the consequent assessment order is also invalid. In view of the above, it is submitted that the proceedings initiated by issuance of notice u/s 148 of the act be declared invalid and bad in law and consequently the assessment order passed u/s 147 r.w.s. 144 r.w.s. 144B be held invalid. Page 6 A.Y. 2016-17 Rattan Jodharam Harchwani
1 On merits, it is contended that the assessee has not operated any bank account with Konark Urban Co-operative Bank Ltd., his KYC details were misused and huge transaction had taken place in multiple years without my knowledge. He did not sign any cheque / pay-in-slip or RTGS forms of bank and did not have any knowledge of amounts deposited or withdrawn from bank account.
On careful consideration of the relevant facts of the case, it is evident that the entire issue has been already been set aside by the ld.CIT(A) to the file of the AO for framing fresh assessment order as the assessment order was passed ex parte u/s 144 of the Act. We do not find any infirmity in the action of the Appellate authority.
1 The ld.AR has taken the ground of validity of the reassessment proceedings and the consequential assessment order on legal ground which has been raised for the first time before us. The issue regarding approval by appropriate authority was never raised before any of the lower authorities. Moreover, this ground requires factual verification of the records to arrive at any conclusion. Considering all these facts and also the fact that the entire issue is now set aside to the AO, we deem it fit to send back this issue also before him for verification of the facts and Page 7 A.Y. 2016-17 Rattan Jodharam Harchwani drawing conclusion as per law. Therefore, this ground of the appeal is allowed for statistical purposes.
In the result, the appeal is allowed for statistical purposes. Order pronounced in the open court on 13/01/2026. ANIKESH BANERJEE (न्यायिक सदस्य /JUDICIAL MEMBER) Place: मुंबई/Mumbai दिनांक / Date 13.01.2026 Lubhna Shaikh / Steno PRABHASH SHANKAR (लेखाकार सदस्य/ACCOUNTANT MEMBER) आदेश की प्रतिलिपि अग्रेषित/Copy of the Order forwarded to : 1. अपीलार्थी / The Appellant 2. प्रत्यर्थी / The Respondent. 3. आयकर आयुक्त / CIT 4. विभागीय प्रतिनिधि, आयकर अपीलीय अधिकरण DR, ITAT, Mumbai 5. गार्ड फाईल / Guard file. सत्यापित प्रति //// आदेशानुसार / BY ORDER, उप/सहायक पंजीकार (Dy./Asstt.