Loading judgment…
Facts
The assessee filed an appeal against the order of the PCIT which invoked Section 263 of the Income Tax Act. The PCIT had set aside the reassessment order passed by the AO, alleging it to be erroneous and prejudicial to the interest of revenue.
Held
The Tribunal held that the reassessment order passed by the AO was invalid because the AO did not dispose of the assessee's objections in a speaking order and also failed to make additions as per the reasons recorded for reopening. The invocation of Explanation 2 to Section 263 by the PCIT without a proper show-cause notice was also found to be bad in law.
Key Issues
Whether the reassessment order passed by the AO was valid and whether the PCIT had the power to revise it under Section 263 when the reassessment was allegedly flawed and the revision proceedings lacked natural justice.
Sections Cited
263, 147, 144B, 10(38), 148, 151, 274(2)(a), 68, 234B, 40A(3), 143(3)
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, DELHI BENCH “G” NEW DELHI
Before: SHRI CHALLA NAGENDRA PRASAD & SHRI M BALAGANESH
सुनवाईक�तारीख/ Date of hearing: 18.08.2025 27.10.2025 उ�ोषणाक�तारीख/Pronouncement on आदेश /O R D E R PER C.N. PRASAD, J.M.
This appeal is filed by the Assessee against the order of the Ld.
PCIT, Faridabad dated 04.03.2024 for the AY 2016-17 passed u/s 263 of the Act. The assessee has challenged the order of the Ld. PCIT on various following grounds:
1. “On the facts and circumstances of the case, the revision order is bad in law as the Ld Pr CIT had no power to assume jurisdiction u/s 263 of IT Act to set aside the reassessment order passed u/s 147/144B of IT Act on SUNITA SAINI 10.03.2022 ignoring the fact that the such reassessment order itself in invalid and not sustainable in law.
2. On the facts and circumstances of the case, the revision order is bad in law as the Ld Pr CIT had no power to assume jurisdiction u/s 263 of IT Act to set aside the reassessment order passed u/s 147/144B of IT Act on 10.03.2022.
3. The Ld. Pr. CIT’s action of setting aside the reassessment order dt: 10.03.2022 is based on the presumption that the assessing authority has not confronted the material and complete information to the appellant during reassessment proceedings in respect of scrip i.e. M/s Yamini Investment Company Ltd which has been rigged up and on which the appellant has claimed exemption of long term capital gain u/s 10(38) of IT Act. But such presumption of the Ld Pr CIT is contrary to facts on records as no material was discussed in reason recorded on the basis of which reassessment proceedings was initiated u/s 147/148. Therefore, the impugned order of revision is therefore bad in law and needs be quashed.
4. The Ld. Pr. CIT has assumed power u/s 263 of the Act holding the assessment order dated 10.03.2022 as erroneous and prejudicial to the interest of revenue on the ground that no independent enquiry or verification of the details were made by the AO. Such assumption of power by the Ld. Pr. CIT is not proper in absence of any minimal inquiry conducted by Pr. CIT to support his finding that the order under revision is prejudicial to the interest of revenue and erroneous.
5. On the facts and circumstances of the case, the revision order is bad in law as the Ld Pr CIT had no power to assume jurisdiction u/s 263 of IT Act to set aside the reassessment order passed u/s 147/144B of IT Act on 10.03.2022 which has been passed after approval of the Additional Commissioner/Joint Commissioner of Income Tax as per provisions of sec 274(2)(a) of IT Act. Therefore, such reassessment order passed after taking approval cannot be subject to revisionary proceedings.
6. The appellant craves leave to add, delete, modify / amend the above grounds of appeal with the permission of the Hon’ble appellate authority.”
2. The Ld. Counsel for the assessee, at the outset, submitted that the assessment order passed u/s 147 r.w.s. 144B of the Act is not a valid assessment and therefore the revisionary proceedings u/s 263 of the Act by the Ld. PCIT against such invalid assessment is also bad in law. Ld. Counsel for the assessee submitted that while completing the assessment u/s 147 r.w.s. 144B of the Act there was no addition made in the assessment for which the case was reopened u/s 147 of the Act. Therefore, the Ld. Counsel for the assessee submitted that since no addition was made in the assessment for which the assessment was reopened the reassessment proceedings are required to be quashed in view of the decision of the jurisdictional High Court in the case of Ranbaxy Laboratories Ltd. vs. CIT (336 ITR 136), the decision of the Hon’ble Bombay High Court in the case of CIT vs. Jet Airways (I) Ltd. (331 ITR 236).
3. The Ld. Counsel for the assessee further submitted that in spite of the assessee vide letter dated 17.07.2021 has requested the AO to provide copy of reasons recorded for reopening but the same was provided in a letter form which is placed at pages 24 to 26 of the Paper Book. Ld. Counsel submits that providing of reasons in letter form and not in the form in which it was recorded along with 3 approving authority is contrary to the decision of the Hon’ble Delhi High Court in the case of M/s SAB Infrastructure Ltd. vs. ACIT (398 ITR 198) which decision of the Hon’ble Delhi High Court was also approved by the Hon’ble Apex Court reported in 461 ITR 339.
4. The Ld. Counsel for the assessee further submitted that reassessment order was passed u/s 147 r.w.s. 144B of the Act was without disposal of objections of the assessee against reopening of assessment, by passing a speaking order by Assessing Officer and therefore the same is illegal and invalid. Ld. Counsel for the assessee referring to page 32 to 38 of the Paper Book submitted that the assessee during the assessment proceedings filed objections for assumption of jurisdiction u/s 147 of the Act on 24.12.2021 against the reasons provided on 17.12.2021. It is submitted that the above objections of the assessee were never disposed of till completion of reassessment proceedings by the AO as is also evident from the subsequent notice dated 08.02.2021 and screenshot and e- proceedings portal placed at pages 27 & 28 of the Paper Book. It is submitted that none disposal of objections by passing a speaking order by the Ld. AO is a clear violation of the directions of the Hon’ble Supreme Court in the case of GKN Driveshafts (India) Ltd. vs. cases of Ferrous Infrastructure P. Ltd. vs. DCIT (63 taxmann.com 201) and CIT vs. Tupperware India Pvt. Ltd. (284 CTR 68) the Hon’ble Delhi High Court quashed the assessment orders on the ground of non disposal of objections of the assessee. Reliance was also placed on the decision of the Hon’ble Madras High Court in the case of Jayanthi Natarajan (Ms.) vs. ACIT (401 ITR 215), wherein the Hon’ble High Court held that the order passed without disposing of objections raised by the assessee for reopening was improper and null and void.
5. For the above reasons the Ld. Counsel for the assessee submitted that when the assessment order passed u/s 144 r.w.s. 147 of the Act was an invalid assessment order the revisionary powers exercised by the Ld. PCIT u/s 263 of the Act for revising such an invalid order are not permissible in law.
The Ld. Counsel for the assessee further referring to notice dated 21.04.2023 issued u/s 263 of IT Act submitted that there is no allegation by Ld. PCIT that the order under revision is erroneous and same has been passed without any application of mind or without any enquiry conducted by then AO on the issues for which the action u/s 147 of IT Act taken by the Revenue. Ld. Counsel submitted that the Ld Pr. CIT in para 8.1 at page 11 therein comes out with allegation 5 support of which various decisions were relied in para 9 to 15 therein. It is submitted that the crux of Ld Pr CIT was that it is a case of completion of assessment after making inadequate enquiry. The Ld. Pr CIT was not entitled to assume jurisdiction on the basis of inadequate enquiry in view of the decision of CIT vs. Cartier Leafin (P) Ltd. [112 taxmann.com 63 (Bom)], CIT vs. Nirav Modi [390 ITR 292 (Bom)], PCIT vs. Clix Finance India (P) Ltd. [2025] [473 ITR 650 (Delhi)], CIT v. Anil Kumar Sharma [355 ITR 83(Del)], and CIT v.
Paville Projects (P.) Ltd. [2023] 453 ITR 447 (SC). It is submitted that the above decisions have been considered in the recent decision of Hon’ble ITAT, Mumbai in the case of Procter and Gamble Health Private Limited Vs PCIT in dated 14.08.2025 wherein it was held that Inadequacy of enquiry would not confer power of revision under Section 263 of the Act.
6.1 Ld. Counsel further referring to show cause notice dated 21.04.2023 issued u/s 263 of the Act submitted that the grievance of the Assessee against the impugned order u/s 263 of IT Act is that the Ld Pr CIT in para 17 at page 16 therein has invoked Explanation 2 to sec 263( 1) of IT Act to hold the assessment order to be erroneous in so far as it is prejudicial to the interest of revenue. The invocation of investigate the issues to the extent it was required. The invocation of Explanation-2 without providing opportunity through above show cause notice amounts to violation of principals of natural justice as held by the Hon’ble Supreme Court in the decision of PCIT, Surat-2 vs. Shree Ji Prints P Ltd. [2021 (9) TMI 108 – SUPREME COURT]. It is very much evident that show-cause-notice dated 21.04.2023 issued under Section 263 of the Act does not mention that the Explanation 2 to S. 263 is going to be invoked. So, invocation of the Explanation 2 in the order passed u/s 263 without confronting the assessee is not sustainable in Law. Further, reliance is also placed on following decisions:
• PCIT vs Trojan Developers [2024] 158 taxmann.com 3225 (DELHI); • Arun Kumar Garg vs. PCIT dated 08.01.2019; • Ashok Kumar Jain vs PCIT 2025 (6) TMI 648 (ITAT-Del) dated 06.06.2025.
Ld. DR strongly supported the orders of the Ld. PCIT in invoking the provisions of section 263 of the Act and holding that the order passed by the AO u/s 147 r.w.s. 144B is erroneous and prejudicial to the interest of the Revenue.
Heard rival submissions, perused the orders of the authorities below. On perusal of the assessment order passed u/s 147 r.w.s.
144B, we observe that the AO stated the reasons for issue of notice u/s 148 of the Act as under:
“Reasons for issuance of notice u/s 148 of the Income Tax Act, 1. As per information available with this office, the assessee has filed return for the A.Y. 2016-17 on 27.07.2016 at income of Rs.13,36,890/-.
2. Information has been extracted through INSIGHT Portal system that the assessee has received accommodation entry from M/s Yamini Investment Company Ltd. for amount of Rs.85,09,000/- during F.Y. 2015-16 relevant to A.Y. 2016-17.
After deep scrutiny of the cam, prima- facie it is clear that the assessee has been found that accommodation entry for amount of Rs.85,09,000/- in the year under consideration and the same is liable to be treated as unexplained income during the F.Y. 2015-16 relevant to A.Y. 2016-17. Furthermore, it is evident that there is a “Live Link” between the material available on record and the escaped income, as mentioned above.
In this case the income declared by the assessee is not the true income of the assessee for the year under consideration and the only requirement to initiate proceeding u/s 147 is reason to believe which has been recorded in this case. In view of the above, the provisions of clause (b) of Explanation 2 of section 147 are applicable to facts of the case and the assessment year under consideration is deemed to be a case where income chargeable to tax has escaped assessment.
5. Keeping in view the statutory provisions, legal principles, and factual matrix that the nature of income declared does not reflect the true and actual income generated by the assessee has received accommodation entry from M/s Yamini Investment Company Ltd. for amount of Rs.85,09,000/- which the same remained unexplained. Therefore, I have reason to believe that the income to the extent of Rs.85,09,000/- chargeable to tax or any other income which 8 SUNITA SAINI comes to my notice subsequently during the course of assessment proceedings u/s. 147 has escaped assessment for the A.Y. 2016-17 within the meaning of section 147 of the Income Tax Act, 1961. In order to assess the above income or any other income which comes to my notice subsequently in the course of assessment proceedings u/s 147, I proceed to initiate proceedings u/s 147 of the I.T. Act, 1961 in the case for A.Y. 2016- 17.”
While completing the assessment addition of Rs.2,23,117/- was made as an unexplained cash credit u/s 68 of the Act in respect of part of the long term capital gain which was claimed as exempt under 10(38) of the Act as against the proposed reopening of assessment for an accommodation entry of Rs.85,09,000/- from M/s Yamini Investment Company Pvt. Ltd. Therefore, it can be seen that while completing the assessment the AO did not make addition for which the reasons recorded for reopening of assessment. Such an assessment is invalid in view of the decision of the Hon’ble Delhi High Court in the case of Ranbaxy Laboratories Ltd. vs. CIT (supra) and also the decision of the Hon’ble Bombay High Court in the case of CIT Vs. Jet Airways India Ltd. (supra).
We also find force in the submission of the Ld. Counsel for the assessee that non disposal of the objections by passing a speaking order by the AO is a clear violation of the directions of the Hon’ble Apex Courts in the case of GKN Driveshafts (Inida) Ltd. vs. ITO (supra). Revenue could not rebut the submissions of the Ld. Counsel reopening of assessment u/s 148 of the Act. Since the objections of the assessee were not disposed of by the AO by way of speaking order till completion of assessment such an assessment is not sustainable in view of the decisions of the Hon’ble Delhi High Court in the case of Ferrous Infrastructure Pvt. Ltd. vs. DCIT and CIT vs. Tupperware (India) Pvt. Ltd. and the decision of the Hon’ble Madras High Court in the case of Jayanthi Natrajan (Ms.) vs. ACIT (supra).
For these reasons the reassessment order passed u/s 147 r.w.s.
14B of the Act dated 10.03.2022 is an invalid assessment and the revisionary proceedings initiated by the Ld. PCIT u/s 263 of the Act for revising such an invalid assessment order is unsustainable in law.
We further observed that the show-cause notice issued by the Ld. PCIT u/s 263 read as under: -
“To Smt. Sunita Saini D-2, Ashiana Apartment, Sector-46,Faridabad – 121001 Madam, Subject: Notice u/s 263 of the Income Tax Act, 1961 in the case of Smt. Sunita Saini, Faridabad (PAN: AWMPS2317Q) for the AY 2016-17 – Reg. – The assessment in this case was completed u/s 147 r.w.s. 144B of the Act, 1961 vide order dated 10.03.2022 by the NFAC, Delhi at an assessed income of Rs.15,60,007/- after making addition of Rs.2,23,117/-.
On perusal of the assessment records of the aforesaid assessee for the AY 2016-17, following discrepancies are noticed: “On perusal of the assessment records during internal audit, it is revealed that the information received in this case was that you have received accommodation entry from M/s Yamini Investment Company Ltd. for an amount of Rs.85,09,000/- during FY 2015-16. On analysis of assessment record, it is noticed that while doing the assessment the AO has not taken into consideration an amount of Rs.82,85,883/-. You have claimed exempt income of Rs.82,85,883/- u/s 10(38) of the Act in respect of long term capital gain received from sale of 1,50,000 shares of M/s Yamini Investment Company Ltd. as per the information transaction in M/s Yamini Investment Company Ltd. is nothing but accommodation entries in the shape of long term capital gain to the different assessee. Hence, tax on this amount of Rs.82,85,883/- is required to be compute and computation of income of the assessee as given under: Returned Income 13,36,890/- Additions to be made 82,85,883/- Tax on addition to be made 24,85,195/- Education Cess 99,430/- Total 25,85,195/- Interest u/s 234B 18,61,340/- Tax effect 44,46,535/- 3. On the basis of discrepancies, it is observed that the assessment framed by NFAC, Delhi u/s 147 r.w.s. 144B is prima facie erroneous in so far as it is prejudicial to the interest of revenue.
4. Keeping in view of the above facts, you are hereby offered an opportunity of being heard on the above said issues and thereby required to attend the office of the undersigned at 2nd Floor, New CGO Complex, Block-B, NH-4, Faridabad – 121001 on 28.04.2023 at 01.00 PM either in person or by a representative duly authorized in writing in this behalf. You or your authorized representative may produce or cause there to be produced at the said time any documents, information and any other evidence on which you may rely in support of your reply. You may furnish the information in writing in this office personally or by post or by email Faridabad.pcit@incometax.gov.in and/or submit orally during the hearing on the said date and time. However, it is speciflaly informed that personal attendance is not mandatory.
It is requested that you must submit your reply for a proper & judicious consideration and appreciation of your version/facts on the issue. In case no explanation/reply is received on or before the appointed date, it shall be presumed that you have nothing further to say in the matter and proceedings u/s 263 of the Income Tax Act, 1961 may be considered on the basis of the material(s) on record.”
As could be seen from the above show cause notice issued by the Ld. PCIT u/s 263 of the Act for revision of the reassessment order, nowhere it was proposed by the Ld. PCIT for invoking the Explanation 2 to section 263 of the act in the case of the assessee.
We observed from the order of the Ld. PCIT passed u/s 263 of the Act in para 17 at page 16 the Ld. PCIT invoked the Explanation 2 to section 263(1) of the Act to hold that the reassessment order to be erroneous in so far as it is prejudicial to the interest of the Revenue.
Invocation of Explanation 2 to section 263 of the Act without issuing show cause notice and providing opportunity to the assessee amounts to not adhering to the principles of natural justice and therefore is unsustainable in law as held by the Hon’ble Gujarat High Court in the case of PCIT vs. M/s Shree Ji Prints P. Ltd. (2020) (2 TMI 1021). The SLP filed by the Revenue against this decision of the Hon’ble Gujarat High Court was also dismissed by the Apex Court in the case of PCIT vs. M/s Shree G Prints Pvt. Ltd. (2021 (9) TMI 108).
Hon’ble Gujarat High Court and the Hon’ble Supreme Court in the case of PCIT vs. M/s Shree G Prints Pvt. Ltd. (supra) the coordinate bench of ITAT Delhi in the case of Ashok Kumar Jain vs. PCIT reported in 2025 (6) TMI 648 quashed the order passed u/s 263 for invoking Explanation 2 to section 263 of the Act while passing the order u/s 263 without confronting to the assessee in the show cause notice issued by the Ld. PCIT, observing as under:
“9. Learned Authorized Representative for appellant/assessee regarding ground of appeal no.2 of submitted that Ld. PCIT passed a order by invoking Explanation 2(a) of sub section 1 of Section 263 and set aside the reassessment order to Ld. AO with the direction to make proper verification with regard to applicability of provisions of section 40A(3) of the Act. Order dated 27.03.2024 passed by the Ld. PCIT is not sustainable under Section 263 of the Act. During assessment proceedings, Ld. AO raised specific query for cash purchase/payment under Section 40A(3) in point number 11 in 142(1) dated 28.02.2022 and 13.02.2022. In response to it, the assessee submitted detailed reply on 24.02.2022 along with all relevant documents i.e. ITR, audited balance sheet and profit and loss account, VAT order, G.P.& N.P. comparison, order under Section 143(3) etc. Ld. AO passed reassessment order after proper verification. Learned AO at the time of passing reassessment order considered the following Facts:-
1. 1. Assessment u/s 143(3) was already done, all books of accounts and vouchers are checked as per assessment order and addition was made earlier also.
2. Purchase sales and trading results are accepted by VAT Department.
3. Investigation wing report is on suspicious basis that payment was made for more than 20,000.
5. Immediately previous AY 2012-13 was also under scrutiny assessment u/s 143(3) and trading results are near to immediately previous scrutiny assessment u/s 143(3), relied on various case laws provided during reassessment proceedings for law of consistency. 9.1 From the above it is clear that Ld. AO made proper inquiries and Appellant has made all the reply and Reassessment order was passed after due verification so Explanation 2(a) of sub section 1 of Section 263 cannot be invoked. 9.2 Ld. PCIT has not mentioned in the show cause notice issued u/s 263 that he is going to invoke the explanation 2 of 263 order u/s 263 is not sustainable in law as per Apex Court in the case of PCIT, SURAT-2 vs. Shree Ji Prints P. Ltd. [2021] 130 taxmann.com 294 (SC) on 27.08.2021. Reliance has been placed on the following judgments: a) PCIT vs. Trojan Developers [2024] 158 taxmann.com 3225 (Delhi) on 11.12.2023 by Hon’ble Delhi High Court; b) Arun Kumar Garg vs. PCIT pronounced on 08.01.2019 by ITAT Delhi.
13. As per ratio of judgment in the case of PCIT, Surat-2 vs. Shree Ji Prints P Ltd. [2021] 130 taxmann.com 294 (SC) on 27.08.2021 by Apex Court, it is well settled that show-cause notice dated 24.11.2023 u/s 263 of the Act does not mention that the Explanation 2 to section 263 is going to be invoked. So, invocation of the Explanation in order without confronting the assessee is not appropriate and sustainable in law. Therefore, the impugned order passed by Ld. PCIT is not sustainable and is set aside. Ground of appeal no.1 is allowed.”
In view of the above discussion, we hold that the revision order passed by the Ld. PCIT dated 04.03.2024 u/s 263 of the Act for AY hereby quashed.
In the result, appeal of the Assessee is allowed.
Order pronounced in the open court on 27.10.2025