BIPIN BABU AGRAWAL,MATHURA vs. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, AGRA, AGRA
Facts
The assessee's appeal arises from an order rejecting a rectification application filed under section 154 of the Income-tax Act. The original assessment order added notional income from house property, which the assessee claimed was not based on incriminating material found during search proceedings. The CIT(Appeals) rejected the assessee's appeal and subsequently rejected the rectification application.
Held
The Tribunal held that the CIT(Appeals) erred in rejecting the rectification application without considering the Supreme Court's judgment in Abhisar Buildwell (P) Ltd. The Tribunal noted that judicial decisions, especially from the Supreme Court, operate retrospectively and clarify the correct legal position. Therefore, the CIT(Appeals) should have considered this judgment for rectification.
Key Issues
Whether the CIT(Appeals) erred in rejecting the rectification application by not considering the subsequent Supreme Court judgments which clarified the law regarding additions not based on incriminating material found during search.
Sections Cited
154, 132, 147, 148, 132A, 143(3), 153A, 143(1), 143(2), 142(1)
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, AGRA BENCH, AGRA
Before: SHRI M. BALAGANESH & SHRI SUNIL KUMAR SINGH
IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI M. BALAGANESH, ACCOUNTANT MEMBER AND SHRI SUNIL KUMAR SINGH, JUDICIAL MEMBER ITA Nos.377, 378, 379 & 380/Agr/2025 Assessment Years: 2013-14, 2015-16, 2016-17 & 2017-18
Bipin Babu Agrawal, 16, Kamla Vs. DCIT, Central Circle, Vihar Colony, Masani Road, Agra. Mathura. PAN : AAWPA0864C (Appellant) (Respondent)
Assessee by Sh. M.M. Agarwal, CA Department by Sh. Sukesh Kumar Jain, CIT(DR)
Date of hearing 19.11.2025 Date of pronouncement 08.12.2025
ORDER PER : SUNIL KUMAR SINGH, JUDICIAL MEMBER:
The facts and issue involved in all these appeals are common, hence, all these appeals are being disposed of by this common order for
the sake of convenience and brevity. The facts of ITA No. 377/Agr/2025 only are being narrated as under. ITA No. 377/Agr/2025 (A.Y. 2013-14):
This appeal has been preferred by assessee against the impugned order dated 24.07.2025 passed on the application of assessee moved u/s. 154 of the Income-tax Act, 1961 (hereinafter referred to as “the Act”)
ITA Nos. 377, 378, 379 & 380/Agr/2025
for the assessment year 2013-14, by the Ld. Commissioner of Income-
tax (Appeals), Kanpur-4, wherein the ld. CIT(Appeals) has rejected the
said application of assessee .
According to the facts of this case, the assessee e-filed his original
return of income for A.Y. 2013-14 on 10.09.2014, declaring total income
of Rs.8,63,060/-. The return was processed u/s. 143(1) of the Act.
Subsequently, a search and seizure action u/s. 132(1) of the Act was
carried out on 19.07.2018 in R.S. Bullion and Jewellers Group of cases,
including the premises of the assessee. Various assets, books of account
and documents were found and seized during the search and seizure
action. Notice u/s. 153A of the Act was issued on 23.09.2020 to the
assessee, who e-filed return of income on 01.10.2020 in compliance
thereof, declaring total income of Rs.9,63,060/- for the year under
consideration. Statutory notices u/s. 143(2) read with section 142(1) of
the Act were also issued and served upon the assessee, who responded
in consequence thereof. After considering the assessee’s reply dated
01.04.2021, Ld. Assessing Officer found that assessee owned three
house properties, out of which one house property No. 14, Kamla Bihar
Colony, Mathura was self occupied property and remaining two houses
No. 4, Kailash Enclave, Balaji Nagar, Kamla Nagar and house No. 16,
Kamla Bihar Colony, Mathura were treated as let out properties. Learned 2 | P a g e
ITA Nos. 377, 378, 379 & 380/Agr/2025
Assessing Officer computed notional income from house property at
Rs.1,19,574/- and added to the income of the assessee, vide
assessment order dated 30.09.2021 passed u/s.143(3)/153A of the Act.
Aggrieved, assessee preferred first appeal before Ld.
CIT(Appeals), before whom, it was pleaded by the assessee that the
additions made vide assessment order dated 30.09.2021 are not based
on the incriminating material found during the search and seizure
proceedings, hence, cannot be added in the income of the assessee.
Learned CIT(Appeals) was not convinced with the arguments of the
assessee and did not find any defect in the assessment order and
dismissed assessee’s appeal, vide first appellate order dated
28.06.2022. Assessee filed rectification application dated 25.04.2023
through e-portal u/s. 154 of the Act, before Ld. CIT(Appeals) for
rectification of the first appellate order dated 28.06.2022 on the ground
that there were mistakes ‘apparent on record’ within the meaning of
section 154 of the Act, while passing the first appellate order dated
28.06.2022 in sustaining the addition towards notional income from
house property, which was admittedly not based on any incriminating
material found during the course of search proceedings conducted u/s.
132 of the Act in respect of the completed and unabated assessment for
A.Y. 2013-14 to 2017-18. Assessee also referred the order dated 3 | P a g e
ITA Nos. 377, 378, 379 & 380/Agr/2025
24.4.2023 passed by Hon’ble Supreme Court in the case of Abhisar
Buildwell (P) in appeal No. 6580 of 2021 in support of his arguments.
However, Ld. CIT(Appeals), without considering the apex court judgment,
rejected assessee’s rectification application, stating that he could not re-
visit his earlier order on merits, being beyond the scope and ambit of
powers u/s. 154 of the Act.
Aggrieved, assessee has filed this second appeal against the
impugned order dated 24.07.2025 passed by Ld. CIT(Appeals) u/s. 154
of the Act and has raised following grounds :
“1. Because, in the facts and circumstances of the case, learned CIT (Appeals) has grossly erred in rejecting application dated 25.04.2023 seeking rectification in the appellate order dated 28.06.2022 2. Because, while rejecting rectification application, learned 'CIT (Appeals)' failed to take note and bind herself with judicial precedents cited before her to the effect that orders passed by Hon'ble Supreme Court are declaration of existing law and have retrospective effect and any order passed contrary to the law declared by Supreme Court is liable to be brought in conformity with such law by passing appropriate order under section 154 of the 'Act'. 3. Because learned 'CIT (Appeals)' failed to appreciate that the appellant was not seeking review of appellate order dated 28.06.2022, but rectification of said order in light of law declared subsequently by Hon'ble Supreme Court. 4. Because, learned 'CIT (Appeals)' has in the facts of the case has erred in not rectifying appellate order dated 28.06.2022 and not directing in deleting the addition of Rs. 1,19,574 (for assessment year 2013-14) and Rs. 1,45,402 (for assessment year 2015-16, 2016-17 and 2017-18). 5. Because the order appealed against is illegal and bad in law.” 4 | P a g e
ITA Nos. 377, 378, 379 & 380/Agr/2025
Perused the records and heard learned representative for the
assessee and learned CIT(DR) for revenue.
Learned AR has submitted that it is an admitted fact that the said
notional addition of income from house property is not based on the
incriminating material found during the search proceedings. Learned
CIT(Appeals) has ignored the referred apex court judgment dated
24.04.2023, passed in Civil Appeal No. 6580/2021, Principal CIT v.
Abhisar Buildwell (P) Ltd. Prayed to allow the appeal.
Learned CIT(DR) has submitted that the assessee has not filed any
appeal against the main first appellate order dated 28.06.2022 passed by
Ld. CIT(Appeals). The instant appeal has only been filed against the
impugned order passed u/s. 154 of the Act. Ld. CIT(DR) has supported
the impugned order dated 24.07.2025.
We have gone through the impugned order dated 24.07.2025.
Learned CIT(Appeals) has, though, referred Abhisar Buildwell (P) Ltd.
(supra), but does not seem to have considered the same, while passing
the impugned order. Hon’ble Apex Court in Abhisar Buildwell (P) Ltd.
(supra) has, vide para 14, held as under :
"14... iv) in case no incriminating material is unearthed during the search, the AO cannot assess or reassess taking into consideration the other material in respect of completed assessments/unabated assessments, no addition can be made by the AO in absence of any incriminating material found during the course of search under section 132 or requisition under 5 | P a g e
ITA Nos. 377, 378, 379 & 380/Agr/2025
section 132A of the Act, 1961. However, the completed/unabated assessment can be reopened under section 147/148 of the Act, subject to fulfillment of the conditions as envisaged/mentioned under section 147/148 of the Act and those powers are saved.”
It is not the case of the revenue that completed/unabated
assessment was reopened u/s. 147/148 of the Act. We fail to understand
as to why learned CIT(Appeals) did not consider the law laid down by the
apex court in Abhisar Buildwell (P) Ltd. (supra).
Learned AR has further submitted that subsequent to the first
appellate order dated 28.06.2022, Hon’ble Apex Court in ACIT vs.
Saurashtra Kutch Stock Exchange Ltd. (2008) 305 ITR 227 (SC) has
treated the subsequent judgment of the jurisdictional High Court and
Supreme Court to be considered for the rectification of the error in first
appellate order as error apparent on record. Relevant paras 40 to 42 of
the said decision in Saurashtra Kutch Stock Exchange Ltd. (supra) read
as under :
"40. The core issue, therefore, is whether non-consideration of a decision of Jurisdictional Court (in this case a decision of the High Court of Gujarat) or of the Supreme Court can be said to be a "mistake apparent from the record"? In our opinion, both - the Tribunal and the High Court - were right in holding that such a mistake can be said to be a "mistake apparent from the record" which could be rectified under section 254(2). 41. A similar question came up for consideration before the High Court of Gujarat in Suhrid Geigy Ltd.'s case (supra). It was held by the Division Bench of the High Court that if the point is covered by a decision of the Jurisdictional Court rendered prior or even subsequent to the order of rectification, it could be said 6 | P a g e
ITA Nos. 377, 378, 379 & 380/Agr/2025
to be "mistake apparent from the record" under section 254(2) of the Act and could be corrected by the Tribunal, 42. In our judgment, it is also well-settled that a judicial decision acts retrospectively. According to Blackstonian theory, it is not the function of the Court to pronounce a 'new rule' but to maintain and expound the 'old one'. In other words, Judges do not make law, they only discover or find the correct law. The law has always been the same. If a subsequent decision alters the earlier one, it (the later decision) does not make new law. It only discovers the correct principle of law which has to be applied retrospectively. To put it differently, even where an earlier decision of the Court operated for quite sometime, the decision rendered later on would have retrospective effect clarifying the legal position which was earlier not correctly understood." 12. The Apex Court judgment in Saurasthtra Kutch Stock Exchange
Ltd. (supra), though, has been delivered in reference to section 254(2) of
the Act for rectification of the mistake apparent from record by the
Tribunal. The CIT(Appeals) is also a quasi judicial authority under the Act
and by applying the principle of harmonious construction, he is also
bound to follow the aforesaid ratio laid down, subsequent to the passing
of the first appellate order dated 28.06.2022. In such facts and
circumstances and in view of the aforesaid legal position, we deem it just
and appropriate to restore the matter back to the file of learned
CIT(Appeals). We direct the first appellate authority to pass order a fresh
on the rectification application of the assessee in view of law laid down
by Hon’ble Apex Court in Abhisar Buildwell (P) Ltd. (supra) and
Saurashtra Kutch Stock Exchange Ltd. (supra). The assessee’s appeal is
accordingly liable to be allowed for statistical purposes.
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ITA Nos. 377, 378, 379 & 380/Agr/2025
ITA Nos. 378, 379 & 380/Agr/2025 (A.Yrs. 2015-16, 2016-17 & 2017-18):
The facts and issues involved in these appeals are similar except
that common addition of Rs.1,45,402/- has been made for all these
assessment years in these three appeals. Our findings recorded in ITA No. 377/Agr/2025 (A.Y. 2013-14) shall mutatis mutandis apply in these
appeals too. These appeals are also liable to be allowed for statistical
purposes accordingly.
In the result, appeals ITA Nos. 377, 378, 379 & 380/Agr/2025 are
allowed for statistical purposes.
Order pronounced in the open court on 08.12.2025.
Sd/- Sd/- (M. BALAGANESH) (SUNIL KUMAR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 08.12.2025 *aks/- Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asst. Registrar, ITAT, Agra
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