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Facts
The assessee filed a return of income for AY 2016-17. The case was reopened to verify capital gains on the sale of immovable properties. The assessment was completed accepting the returned income. The Ld. PCIT initiated proceedings under section 263, alleging that the Assessing Officer (AO) failed to verify certain aspects, making the assessment order erroneous and prejudicial to revenue.
Held
The Tribunal held that the reassessment proceedings initiated by the AO were invalid due to the lack of proper approval from the appropriate authority as required by Section 151 of the Act. Since the reassessment order was invalid, the revision proceedings under Section 263 were also invalid. The Tribunal also found that the AO had conducted sufficient inquiries and taken a plausible view, which was not erroneous or prejudicial to the revenue.
Key Issues
Whether the reassessment proceedings initiated under section 147/148 were valid due to non-compliance with the approval requirements under section 151, and whether the revision order under section 263 was sustainable.
Sections Cited
263, 147, 143(3), 148, 151, 148A
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, RAJKOT BENCH, RAJKOT
Before: DR. ARJUN LAL SAINI & SHRI DINESH MOHAN SINHA
सुनवाई क� तार�ख /Date of Hearing : 10/06/2025 घोषणा क� तार�ख /Date of Pronouncement : 29/08/2025 ORDER Per Dr. Arjun Lal Saini, Accountant Member:
By way of this appeal, the assessee has called into question correctness of impugned order passed by the Learned Principal Commissioner of Income Tax ( in short “Ld.PCIT”) under section 263 of the Income tax Act, 1961, in the matter of assessment under section 143(3) of the Act for the assessment year 2016-17, on the following grounds: “1.The Pr. Commissioner of Income-tax erred in law as well as on fact in assuming jurisdiction under section 263 of the Act.
Abdulkadir Hajiahmed Vadiwala 2 2.The Id. PCIT erred in law as well as on facts in holding that assessment order passed by ld.AO u/s.147 r.w.s. 144B is erroneous and prejudicial to the interest of the revenue.
The facts of the case which can be stated quite shortly are as follows: The return of income for the Assessment Year (AY) 2016-17, was filed by the assessee, on 30/07/2016, declaring a total income of Rs. 4,32,940/-. The assessee`s case was reopened to verify the capital gain arising on sale of immovable properties during Financial Year (FY) 2015-16. Subsequently, the assessment was completed under section 147 r.w.s. 144B of the Income-tax Act, 1961 (for short ‘the Act’) vide order dated 16/03/2023, accepting the returned income of the assessee.
Later on, the Learned Principal Commissioner of Income Tax ( in short “Ld.PCIT”), has exercised his jurisdiction, under section 263 of the Income tax Act, 1961. On perusal of the assessment records, it was observed by ld.PCIT that while finalizing the assessment proceedings, the Assessing Officer (AO) failed to verify or examine various aspects of the taxability of income, rendering the order erroneous and prejudicial to the interests of the revenue. No documentary evidence to support the cost of improvement claimed during Financial Year (FY) 2014-15 was submitted by the assessee before the assessing officer. The mismatch in turnover and stock figures between the profit and loss account and the audit report was not examined by the assessing officer. Disproportionate claim of expenses, relating to the assessee's share in sold properties and incorrect allocation of cost of acquisition to the entire land rather than proportionate to the land sold, were not examined by the assessing officer. Therefore, learned PCIT observed that order passed by the assessing officer is erroneous and prejudicial to the interest of the revenue. Therefore, learned PCIT issued a show cause notice to the assessee, requesting an explanation, as to why the assessment order u/s 143(3) rws 144B of the Act, dated 16/03/2023, should not be revised. The show cause notice issued to the assessee under section 263 of the Act, is reproduced by the ld.Pr.CIT in his revision order from page no.2 to 4.
In response to the notice of the ld.Pr.CIT, the assessee, submitted its written submissions along with documentary evidences, before the ld.Pr.CIT, on 23.12.2024, which are reproduced below:
“1. With above reference, before going into merits of issues raised by your honour in notice u/s.263 of the Act, at the outset we submit that the reopening of assessment u/s.147 is bad in law and void ab initio, hence, once the reopening of assessment and consequent assessment order is bad in law and illegal, no proceedings u/s.263 can be initiated on such illegal order.
We invite your honurs kind attention to notice u/s.148 issued on 29.07.2022 for assessment year 2016-17. Your honour may kindly appreciate that the said notice was issued beyond period of three years from the end of the assessment year, three years expires on 31.03.2020. Hence, as per amended provisions of section 151 approval of Pr. Chief Commissioner of Income Tax is required for issuance of notice beyond three years from the end of the assessment year. In the present case Ld.AO has obtained approval of Pr. Commissioner of Income Tax vide reference no. Pr.CIT/Jam/HQ-1/CBDT Inst No.1/148/2022-23 dated 28.07.2022. Hence, notice issued u/s.148 is invalid and void ab initio and consequently assessment order passed u/s.147 r.w.s. 144B dated 16.03.2023 is also invalid. We attach herewith notice u/s.148 dated 29.07.2022 on page no.15 3. We invite your honours kind attention to decision of Hon’ble Mumbai Bench in the case of ACIT-19(1) v/s. Manish Financial in & C.O.No.230/Mum/2024 dated 02.12.2024 in which after considering the Hon’ble SC decision of Union of India v/s. Rajeev Bansal Civil application No.8629 of 2024 dated 03.10.2024 held that in absence of valid approval u/s.151 notice u/s.148 is invalid and liable to quash. Following is the observation of Hon’ble ITAT. “The assessee for the year under consideration filed the return of income declaring a loss of Rs.3,37,77,313/-. The assessment was reopened by issue of notice under section 148 of the Act on 23.04.2021 and notice was deemed to be a notice issued under section 148A(b) as per the directions of the Hon'ble Supreme Court in the case Ashish Agrawal (supra). The AO issued a notice under section 148 dated 30.07.2022 after passing order under section 148A(d) of the Act. In the C.O. of AY 2016-17 one of the legal contentions raised by the assessee is that the AO has not obtained approval of the appropriate authority for the purpose of issuing under section 148 of the Act. The relevant ground in the C.O. reads as under: “On the facts and in the circumstances of the case and in law, the Ld. CIT(A) (NFAC) erred in not holding the notice u/s 148 of the Act as invalid and bad in law without appreciating the fact that when the notice issued u/s 148 of the Act was beyond period of three years, approval was required to be taken as per provisions of amended section 151 of the Act from Principal Chief Commissioner or Principal Director General or Chief Commissioner or Director General of Income Tax and not from Principal Commissioner of Income Tax and as laid down by the Hon'ble Supreme Court in case of Union of India vs. Rajeev Bansal (Civil Appeal No 8629 of 2024).”
The ld. AR submitted that the Hon'ble Supreme Court in the case of Rajeev Bansal (supra) has considered the issue of getting approval from appropriate authority under section 151 before issue of notice under section 148 of the Act to cases where the revenue has invoked the provisions of section 148A as per the directions of the Hon'ble Supreme Court in the case of Ashish Agrawal (supra). In this regard the ld. AR drew Abdulkadir Hajiahmed Vadiwala 4 our attention to the relevant observations of the Hon'ble Hon'ble Supreme Court as extracted below: “73. Section 151 imposes a check upon the power of the Revenue to reopen assessments. The provision imposes a responsibility on the Revenue to ensure that it obtains the sanction of the specified authority before issuing a notice under section 148. The purpose behind this procedural check is to save the assesses from harassment resulting from the mechanical reopening of assessments. A table representing the prescription under the old and new regime is set out below: 74. The above table indicates that the specified authority is directly corelated to the time when the notice is issued. This plays out as follows under the old regime: (i) If income escaping assessment was less than Rupees one lakh: (a) a reassessment notice could be issued under section 148 within four years after obtaining the approval of the Joint Commissioner; and (b) no notice could be issued after the expiry of four years; and (ii) If income escaping was more than Rupees one lakh; (a) a reassessment notice could be issued within four years after obtaining the approval of the Joint Commissioner; and (b) after four years but within six years after obtaining the approval of the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner.
After 1 April 2021, the new regime has specified different authorities for granting sanctions under Section 151. The new regime is beneficial to the assessee because it specifies a higher level of authority for the grant of sanctions in comparison to the old regime. Therefore, in terms of Ashish Agarwal (supra), after 1 April 2021, the prior approval must be obtained from the appropriate authorities specified under Section 151 of the new regime. The effect of Section 151 of the new regime is thus: (i) If income escaping assessment is less than Rupees fifty lakhs: (a) a reassessment notice could be issued within three years after obtaining the prior approval of the Principal Commissioner, or Principal Director or Commissioner or Director; and (b) no notice could be issued after the expiry of three years; and (ii) If income escaping assessment is more than Rupees fifty lakhs: (a) a reassessment notice could be issued within three years after obtaining the prior approval of the Principal Commissioner, or Principal Director or Commissioner or Director; and (b) after three years after obtaining the prior approval of the Principal Chief Commissioner or Principal Director General or Chief Commissioner or Director General.
Grant of sanction by the appropriate authority is a precondition for the assessing officer to assume jurisdiction under Section 148 to issue a reassessment notice. Section 151 of the new regime does not prescribe a time limit within which a specified authority has to grant sanction. Rather, it links up the time limits with the jurisdiction of the authority to grant sanction. Section 151 (ii) of the new regime prescribes a higher level of authority if more than three years have elapsed from the end of the "elevant assessment year. Thus, non-compliance by the assessing officer with the strict time limits prescribed under Section 151 affects their jurisdiction to issue a notice under Section 148.
Parliament enacted TOLA to ensure that the interests of the Revenue are not defeated because the assessing officer could not comply with the pre- conditions due Abdulkadir Hajiahmed Vadiwala 5 to the difficulties that arose during the COVID-19 pandemic. Section 3(1) of TOLA relaxes the time limit for compliance with actions that fall for completion from 20 March 2020 to 31 March 2021. TOLA will accordingly extend the time limit for the grant of sanction by the authority specified under Section 151. The test to determine whether TOLA will apply to Section 151 of the new regime is this: if the time limit of three years from the end of an assessment year falls between 20 March 2020 and 31 March 2021, then the specified authority under Section 151(i) has an extended time till 30 June 2021 to grant approval. In the case of Section 151 of the old regime, the test is: if the time limit of four years from the end of an assessment year falls between 20 March 2020 and 31 March 2021, then the specified authority under Section 151(2) has time till 31 March 2021 to grant approval. The time limit for Section 151 of the old regime expires on 31 March 2021 because the new regime comes into effect on 1 April 2021.
For example, the three year time limit for assessment year 2017-2018 falls for completion on 31 March 2021. It falls during the time period of 20 March 2020 and 31 March 2021, contemplated under Section 3(1) of TOLA. Resultantly, the authority specified under Section 151(i) of the new regime can grant sanction till 30 June 2021.
Under Finance Act 2021, the assessing officer was required to obtain prior approval or sanction of the specified authorities at four stages: a. Section 148A(a) to conduct any enquiry, if required, with respect to the information which suggests that the income chargeable to tax has escaped assessment; b. Section 148A(b) - to provide an opportunity of hearing to the assessee by serving upon them a show cause notice as to why a notice under Section 148 should not be issued based on the information that suggests that income chargeable to tax has escaped assessment. It must be noted that this requirement has been deleted by the Finance Act 2022; c. Section 148A(d) - to pass an order deciding whether or not it is a fit case for issuing a notice under Section 148; and d. Section 148-to issue a reassessment notice.
In Ashish Agarwal (supra), this Court directed that Section 148 notices which were challenged before various High Courts "shall be deemed to have been issued under Section 148-A of the Income Tax Act as substituted by the Finance Act, 2021 and construed or treated to be show-cause notices in terms of Section 148-A(b)."Further, this Court dispensed with the requirement of conducting any enquiry with the prior approval of the specified authority under Section 148A(a). Under Section 148A(b), an assessing officer was required to obtain prior approval from the specified authority before issuing a show cause notice. When this Court deemed the Section 148 notices under the old regime as Section 148A(b) notices under the new regime, it impliedly waived the requirement of obtaining prior approval from the specified authorities under Section 151 for Section 148A(b). It is well established that this Court while exercising its jurisdiction under Article 142, is not bound by the procedural requirements of law. 130 81. This Court in Ashish Agarwal (supra) directed the assessing officers to "pass orders in terms of Section 148-A(d) in respect of each of the assesses concerned." Further, it directed the assessing officers to issue a notice under Section 148 of the new regime "after following the procedure as required under Section 148-A." Although this Court waived off the requirement of obtaining prior approval under Section 148A(a) and Section 148A(b), it did not waive the requirement for Section 148A(d) and Section 148. Therefore, the assessing officer was required to obtain prior approval of the specified authority according to Section 151 of the new regime before passing an order under Section 148A(d) or issuing a notice under Section 148. These notices ought to have Abdulkadir Hajiahmed Vadiwala 6 been issued following the time limits specified under Section 151 of the new regime read with TOLA, where applicable.
13. The ld. DR on the other hand submitted that the original notice issued by the AO under the old regime was issued correctly with approvals from the appropriate authority under the erstwhile section 151 of the Act and therefore the proceedings cannot be invalidated on the ground that the approval is not obtained from appropriate authorities.
We heard the parties and perused the material on record. In assessee's case for AY 2016-17 pursuant to the directions of the Hon'ble Supreme Court in the case of Ashish Agrawal, the AO passed an order under section 148(d) of the Act and issued a notice under section 148 on 30.07.2022. From the above observations of the Hon'ble Supreme Court it is clear that the though the prior approval under section 148A(b) and 148(d) were waived in terms of the decision of Ashish Agarwal (supra), for issue of notice under section 148A(a) and under section 148 on or after 1 April 2021, the prior approval should be obtained from the appropriate authorities specified under Section 151 of the new regime. The provisions of section 151 of the Act under the new regime read as under: Sanction for issue of notice.
Specified authority for the purposes of section 148 and section 148A shall be,— (i) Principal Commissioner or Principal Director or Commissioner or Director, if three years or less than three years have elapsed from the end of the relevant assessment year; (ii) Principal Chief Commissioner or Principal Director General or where there is no Principal Chief Commissioner or Principal Director General, Chief Commissioner or Director General, if more than three years have elapsed from the end of the relevant assessment year.
In assessee's case from the perusal of para 3 of the notice issued under section 148 for AY 2016-17 we notice that the same is issued with the prior approval of Pr.CIT-19 Mumbai accorded on 29.07.2022 vide reference No.Pr.Cit19/148/2022-23 and this fact is not contravened by the ld DR. For AY 2016-17, the period of three years have elapsed as of 31.03.2020 and the notice is issued beyond three years on 30.07.2022. Therefore as per the decision of the Hon'ble Supreme Court, the approval should have been obtained under the amended provisions of section 151(ii) of the Act i.e. the approval should have been obtained from the Principal Chief Commissioner whereas the approval has been obtained from Pr.CIT as stated in the notice under section 148 itself. Therefore we see merit in the contention of the assessee that the notice under section 148 for AY 2016-17 is issued without obtaining the prior approval from the appropriate authority. Accordingly we hold that the notice under section 148 is invalid and the consequent assessment under section 147 is liable to be quashed.
16. Since we have already quashed the order under section 147 based on the legal contention of notice being issued without obtaining proper approval, the other legal contentions have become academic not warranting any adjudication.
We have quashed the re-assessment proceedings for AY 2016-17 considering the legal contentions raised by the assessee in the C.O. therefore the appeals of the revenue for AY 2016-17 contending the relief granted by the CIT(A) on merits have become infructuous. Accordingly, the appeals of the revenue are dismissed.
In the result, the appeals of the revenue for AY 2015-16 and AY 2016-17 are dismissed and C.O. of the assessee for these years are partly allowed.
Abdulkadir Hajiahmed Vadiwala 7 4. We enclose herewith copy of said order for your honours ready reference at page no.16 to 29 5. In view of above your honour may kindly appreciate that the reopening of assessment and consequent order is bad in law. 6. Once the assessment order is invalid, such order cannot be subject to revision u/s.263 of the Act. We rely upon following judicial decisions in this regard:
In view of above, we kindly request your honor to drop 263 proceedings.
8. So far as merits of the case is concern, observations of your honours are factually incorrect and we submit herewith point wise reply as under. 3.1. Your honour may appreciate that assessee is engaged in business of selling of plots converted from ancestral land and also engaged in trading activity in name of Ambreen Enterprise in which assessee. While filling of return of income, assessee gets his books of accounts audited and books of accounts of firm i.e. Ambreen Enterprise and personal books both were merged and audit report done and return filled accordingly. During the course of assessment, there were only questions asked about business in relation to land development only, Hence, assessee has submitted complete details for that activities from his personal set of books where Turnover reflected only in relation to land development business only. We reconcile herewith Turnover and stock for your verification : - Reconciliation of Turnover : -
Reconciliation of Closing stock:
It is clearly visible from above reconciliation that there is no difference in turnover and Stock, its just merger of two separate books of accounts which were duly audited and details for the same were also submitted during the course of original assessment also. In relation to reporting of data from financial year 2014-15 in annexure of tax audit report, we humble submit that there is error in reporting of data while filling of tax audit report, However, if your honour verify actual figurative data then it can be seen that there is complete details submitted during the course of original assessment also. 3.2 we have submitted the complete details of improvement in assessment also along with confirmation of all of parties who has done work for us along with contra confirmation of all creditors which are incurred in financial year 2014-15 only and after incurring of expense, we have carried forwarded all stock along with its base value with improvement in next financial year as opening stock. We hereby providing screenshot from order itself admitting for verification of documentary proof in relation to improvement : -
If any further details required, then we are read to provide the same. 3.3 Your honour has viewed our chart very wrongly, we have reflected details of our part of expense only in that chart i.e. Our share in Total Expense i.e. 20.75% incurred for getting plots to be salable is Rs. 3,29,04,667/- for total plots to be sold future and from that we have claimed expense for those plots only which were sold during the year hence observation made in notice is completely wrongly. Whatever expense claimed can not be compared with total expense, we have claimed only 20.75% of expense only, however Actual expense incurred for Land of 6,23,756 Sq. Ft is much more which also reflected in chart submitted. We request to verify basis facts and revise your honours observation. 3.4 Your honour may appreciate that in chart submitted in original assessment clarly reflects that from Abdulkadir Hajiahmed Vadiwala 9 expense incurred i.e. total of Rs. 3,29,04,667/- we have claimed only expense for the plots which were sold during the year which can not be compared with sale made or not. We have carried forwarded expense in relation stock only and not claimed in this year, hence we request your honour to recheck your observation and consider the matter again.”
However, the ld. Pr.CIT rejected the above contentions of the assessee and observed that the assessee claimed significant improvement costs on the sold properties but did not submit documentary evidences during the scrutiny proceedings. The turnover and stock figures in the profit and loss account do not match with the audit report. The AO failed to verify the computation methodology and substantiate the proportional expense claims. Therefore, learned PCIT held that assessment order passed by the assessing officer, u/s 147 r.w.s. 144B of the Act, dated 16/03/2023, in the case of the above mentioned assessee for the assessment year (AY) 2016-17 is erroneous in so far as it is prejudicial to the interest of revenue within the meaning of section 263 of the Act. Therefore, learned PCIT set aside the assessment order passed under section 147 read with section 144B of the Act, dated 16/03/2023 for AY 2016-17 and directed the assessing officer to frame the fresh assessment order.
7.Aggrieved by the order of the ld.Pr.CIT, the assessee is in appeal before us.
The ld.Counsel for the assessee, at the outset, argued that the reassessment proceedings initiated by the AO under section 147 read with section 148 of the Act, itself is invalid, that is, re-assessment proceedings initiated against the assessee, under section 147 of the Act, is not in accordance with the provision of the Act. Therefore, the assessment order is itself invalid. In respect of invalid assessment, the ld.Pr.CIT cannot exercise his jurisdiction under section 263 of the Act. Therefore, since the assessment order itself is bad in law, and hence consequential revision of the assessment order is also bad in law.
Abdulkadir Hajiahmed Vadiwala 10 9.The ld. Counsel for the assessee further submitted that in the assessee’s case under consideration, notice under section 147/148 was issued on 29.07.2022 and the assessment year involved in the assessee’s case under consideration is AY 2016-17, in the case of assessment year 2016-17, three years expired on 31.03.2020. However, notice under section 147/148 was issued to the assessee on 29.07.2022 which is beyond three years, that is, which is after expiry of three years. Therefore, the reassessment proceedings initiated by the AO should be quashed.
10.The ld.Counsel for the assessee also took us through the approval under section 151 of the Act, given by the Pr.Commissioner of Income Tax, which is mentioned in the notice under section 148 dated 29.07.2022. The approval was given by the ld.Pr.Commissioner of Income Tax, Jamnagar on 28.07.2022, who was not a correct approving authority. Therefore, the approval given by the higher authorities under section 151 of the Act is not in accordance with law, and on this score, the assessment proceedings should be quashed. To support his stand, the ld.Counsel for the assessee relied on the following judgments: i) ACIT-19(1) v/s.Manish Financial[I.T.A. No.5055/Mum/2024 & dated 02.12.2024 ii) Anil Nachrani v. Pr. CIT [2024 TaxPub(DT) 765 (Raip-Trib)] iii) Aruna Tiwari v. Pr. CIT [2023 TaxPub(DT) 4583 (Raip-Trib) : (2023) 108 ITR (Trib) 0040] iv) Charbhuja Marmo (India) (P) Ltd. v. Pr. CIT [2020 TaxPub(DT) 0302 (Del- Trib)] v) Maloo Construction (P) Ltd. v. Pr. CIT [2022 TaxPub(DT) 0763 (Sur-Trib)] vi) Mikado Realtors (P) Ltd. v. Pr. CIT [2021 TaxPub(DT) 2899 (Del-Trib)] vii) Supersonic Technologies (P) Ltd. v. Pr. CIT [2019 TaxPub(DT) 1030 (Del- Trib) : (2019) 069 ITR (Trib) 0585]
On the other hand, the ld.CIT-DR for the Revenue submitted that the notice under section 148 of the Act is not invalid. Besides, the approval was given as per the provisions of the Act under section 151 of the Act.
12.On merit, the ld.Counsel for the assessee submitted that the assessee has converted the property into stock-in-trade and opening and closing balances were correctly explained before the assessing officer (AO) during the assessment proceedings in response to the notice under section 142(1) of the Act, and therefore, the AO has conducted sufficient inquiries about the issue raised by the ld.Pr.CIT. The assessee submitted the sufficient evidences in respect of improvement costs on the sold properties during the scrutiny proceedings. The turnover and stock figures in the profit and loss account were matching with the audit report. The AO has also verified the computation methodology and the assessee has substantiated the proportional expense claims, during the assessment proceedings. Hence, the order of the AO is neither erroneous nor prejudicial to the internet of the Revenue.
On merit, the ld.DR for the Revenue submitted that there was lack of inquiry on the part of the assessing officer (AO) during the assessment proceedings, as the AO has not examined cost of improvement, turnover and stock figures in the profit & loss account. Therefore, the ld.Pr.CIT has rightly exercised his jurisdiction under section 263 of the Act.
Abdulkadir Hajiahmed Vadiwala 12 14. We have heard both the parties and carefully gone through the submission put forth on behalf of the assessee along with the documents furnished and the case laws relied upon, and perused the fact of the case including the findings of the ld PCIT and other materials brought on record. We note that improvement costs were incurred during Financial Year (FY) 2014-15 and were duly reflected in the opening stock of financial year (FY) 2015- 16. The supporting documents, including confirmations from contractors, were provided during the assessment proceedings. We note that the assessee explained the discrepancy arose due to the merger of two separate books of accounts. The reconciliations of turnover and stock were provided, showing no discrepancies in aggregate by the assessee during the assessment proceedings. Further, the assessee has also submitted during the course of assessment proceedings, about the questions asked in relation to land development and the assessee has submitted complete details for those activities from his personal set of books where turnover reflected in relation to land development business. Considering these facts, we find that there is no lack of enquiry on the part of the assessing officer.
15. We note that during the assessment proceedings, the assessee also submitted that only 20.75% of the expenses incurred for total land development were claimed, corresponding to the sold plots and detailed computations and supporting documents were provided to the assessing officer during the assessment proceedings. The assessee also stated that the claimed expenses pertained only to the sold plots, and the remaining costs carried forward, as stock. Therefore, we find that during the assessment proceedings, the assessing officer has conducted sufficient enquiry in respect of the issue raised by the learned PCIT. We note that ld. PCIT has exercised jurisdiction u/s.263 of the Act on the ground that the assessing officer had failed to make proper enquiry which he ought to have made before completing the assessment. However, we note that Abdulkadir Hajiahmed Vadiwala 13 there is a distinction between "lack of enquiry" and "inadequate enquiry”. If there is an enquiry, even inadequate, that would not by itself give occasion to the Ld. PCIT to pass order under section 263 of the Act, merely because he has a different opinion in the matter. Such a course of action is open only in cases of "lack of enquiry". We also note that assessing officer is not required to give detailed reason in respect of each and every item of deduction in the assessment order. The assessing officer had called for explanation regarding the issue raised by the learned PCIT and have examined them properly, and thereafter took a plausible view. Thus, it cannot be said that it is a case of 'lack of enquiry'. Therefore, the view taken by the assessing officer was one of the plausible views and the assessment order passed by the assessing officer could not be held to be prejudicial to the Revenue. Even the ld. PCIT conceded the position that the assessing officer made the inquiries. The grievance of the ld.PCIT was that the assessing officer should have made further inquiries, as to whether any addition has to be made on account of cost of improvement and expenses and reconciliations of turnover and stock etc.Therefore, it cannot be said that it is a case of 'lack of inquiry'. We also derive support for our conclusions as above from the decision of the Hon'ble Delhi High Court in the case of CIT Vs. Sunbeam Auto Ltd. 332 ITR 167 (Del.).
On the identical facts, Let us take the guidance of judicial precedents laid down by the Hon’ble Apex Court in Malabar Industries Ltd. vs. CIT [2000] 243 ITR 83(SC) wherein their Lordship have held that twin conditions needs to be satisfied before exercising revisional jurisdiction u/s 263 of the Act by the PCIT. The twin conditions are that the order of the Assessing Officer must be erroneous and so far as prejudicial to the interest of the Revenue. In the following circumstances, the order of the AO can be held to be erroneous order, that is (i) if the Assessing Officer’s order was passed on incorrect assumption of fact; or Abdulkadir Hajiahmed Vadiwala 14 (ii) incorrect application of law; or (iii)Assessing Officer’s order is in violation of the principle of natural justice; or (iv) if the order is passed by the Assessing Officer without application of mind; (v) if the AO has not investigated the issue before him; then the order passed by the Assessing Officer can be termed as erroneous order. Coming next to the second limb, which is required to be examined as to whether the actions of the AO can be termed as prejudicial to the interest of Revenue. When this aspect is examined one has to understand what is prejudicial to the interest of the revenue. The Hon’ble Supreme Court in the case of Malabar Industries (supra) held that this phrase i.e. “prejudicial to the interest of the revenue’’ has to be read in conjunction with an erroneous order passed by the Assessing Officer. Their Lordship held that it has to be remembered that every loss of revenue as a consequence of an order of Assessing Officer cannot be treated as prejudicial to the interest of the revenue. When the Assessing Officer adopted one of the courses permissible in law and it has resulted in loss to the revenue, or where two views are possible and the Assessing Officer has taken one view with which the PCIT does not agree, it cannot be treated as an erroneous order prejudicial to the interest of the revenue “unless the view taken by the Assessing Officer is unsustainable in law”.
17.Therefore, we find that the AO’s action cannot be termed “erroneous”. Since not only enquiry was carried out by the AO on the issue under consideration and based on the evidence gathered he has taken a plausible view, which at any rate cannot be called as an un-sustainable view. Hence, we are inclined to quash the impugned order dated 23-01-2025 of the ld. PCIT and allow the appeal of the assessee.
Abdulkadir Hajiahmed Vadiwala 15 18. As, we have adjudicated the issue on merit, therefore, all other technical arguments and grounds on reassessment u/s. 148/151 of the Act, are rendered academic and infructuous.
In the result, appeal filed by the assessee, is allowed.
Order is pronounced in the open court on 29/08/2025
Sd/- Sd/- (DINESH MOHAN SINHA) (DR. ARJUNLAL SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER राजकोट /Rajkot िदनांक/ Date: 29/08/2025 True Copy *vk आदेश क� �ितिलिप अ�ेिषत/ Copy of the order forwarded to : अपीलाथ�/ The assessee ��यथ�/ The Respondent आयकर आयु�/ CIT आयकर आयु�(अपील)/ The CIT(A) िवभागीय �ितिनिध, आयकर अपीलीय आिधकरण, राजकोट/ DR, ITAT, RAJKOT गाड�फाईल/ Guard File /True copy/ By order