ARUN DUGGAL,FARIDABAD V. DCIT, CENTRAL CIRCLE- 1, FARIDABAD

MA 100/DEL/2022

AI Insights

The case involves a miscellaneous application filed by Arun Duggal against the order of the Income Tax Appellate Tribunal, which pertained to the assessment year 2009-10. The application contested the Tribunal's earlier decision, arguing that certain legal precedents and statutory provisions were not adequately considered, particularly concerning the mechanical approval under section 151 and the application of section 68 to bank statements. The Tribunal acknowledged the oversight of not considering significant judicial precedents and the mechanical nature of the approval under section 151, which led to the decision to recall the earlier order and re-examine the specified grounds.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 47282 (ITAT-DELHI)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-04-2025
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Other Referred Cases: ESS ADVERTISING 437 ITR 1, DCIT vs Raghuveer Synthetics (2017) 394 ITR 1 (SC), Mohanlal Antwani vs UOI 449 ITR 476, HDFC Bank Ltd vs DCIT (2016) 383 ITR 529, TIA ENTERPRISES PVT LTD VS ITO W.P.(C) 13903/2018, SBC MINERALS PVT. LTD vs ACIT W.P.(C) 7885/2023, VINOD KUMAR SOLANKI VS ACIT W.P.(C) 4196/2022, The Pr. Commissioner of Income Tax-7 vs. Pioneer Town Planners Pvt. Ltd. [Delhi High Court order dated 20 February 2024 in ITA 91/2019], CAPITAL BROADWAYS PVT LTD VS ITO (03RD OCT 2024)
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MUNISH RAJANI
• Assessee Lawyers: KAPIL GOEL
• Keywords: Reassessment proceedings; Reason to believe
• Section: 147; 148; 154; 64; 254(2); 68; 133(6); 13; 20

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘A’: NEW DELHI BEFORE SHRI S.RIFAUR RAHMAN, ACCOUNTANT MEMBER and SHRI SUDHIR KUMAR, JUDICIAL MEMBER MA No.100/Del/2022 (in ITA No.3075/DEL/2018) (Assessment Year: 2009-10) Arun Duggal, vs. DCIT, Central Circle 1, 3E-42, NIT, Faridabad. Faridabad – 121 001 (Haryna). (PAN : AGUPD5708Q) (APPELLANT) (RESPONDENT) ASSESSEE BY : Shri Kapil Goel, Advocate REVENUE BY : Shri Munish Rajani, Sr. DR Date of Hearing : 21.03.2025 Date of Order : 09.04.2025 ORDER PER S.RIFAUR RAHMAN,AM: 1. This misc. application is filed by the assessee against the order of the Tribunal in ITA No.3075/Del/2018 dated 04.01.2022 for AY 2009-10. 2. At the time of hearing, ld. AR of the assessee has only pressed three mistakes in the aforesaid order of the Tribunal at sr.nos.3 to 5 of the misc. application, which are as under :- “3. Non consideration and adjudication of plea relating to cited provision of sec. 142(3) with reference to cited paper book pages and cited precedents. 2 MA No.100/Del/2022 4. Non consideration and adjudication of plea relating to applicability of sec. 68 to bank statement with reference to cited precedents and cited provision of sec. 2(12A) of the Act 1961 Act. 5. Non consideration of various cited precedents on issue of validity of approval u/s 151 of the Act incl. Hon’ble Delhi High Court latest decision in case of ESS ADVERTISING 437 ITR 1 and other Jurisdictional Delhi High Court, MP High Court (SLP Dismissed); Orissa High Court cited precedents.” 3. With regard to issue of validity of approval u/s 151 of the Act, ld. AR of the assessee’s plea is as under :- 1. Brief undisputed facts a) The information was received from ADIT(Inv) II by office of assessee’s AO on 31.03.2016 (para 82 page 116 ITAT order) b) Reasons u/s 148(2) were drafted on 31.03.2016 (para 87 page 124) which were sent for sanction u/s 151 to PCIT on 31.03.2016; c) Relevant sanction u/s 151 as reproduced at para 90 page 126/127 is given on 31.03.2016 with only REMARKS “I AM SATISFIED” d) Assessee has relied on jurisdictional Delhi High Court decision in case of ESS ADVERTISING 437 ITR 1 (noted at multiple places in ITAT order) in support of contention that stated sanction u/s 151 is mechanical and invalid (same is no where considered in the ITAT order) e) Assessee was only given proforma of sanction u/s 151 in RTI reply and not any other document was given ; f) The decision to hold said sanction u/s 151 as valid by ITAT is contained in para 94 ;95 etc pages 131 to page 133 (promptness of action on part of revenue authorities is made as basis) 2. Assessee’s case u/s 254(2) Mistake apparent from record That in arguments as noted in order of ITAT as multiple placed heavy reliance was placed on LATEST Hon’ble Delhi High Court (jurisdictional) high court decision in case of 437 ITR 1 which is no where considered in entire order of ITAT and same ratio of the high court order is further subsequently followed/applied in chain of latest 3 MA No.100/Del/2022 decisions of hon’ble delhi high court to hold instant approval u/s 151 is invalid; So on both the basis that there is non consideration of binding on Hon’ble Delhi High Court decision and also subsequent Hon’ble High Court rulings totally counters the view of ITAT on admitted facts, same is clear MISTAKE APPARENT which is requested to be rectified u/s 254(2) of the Act. Non consideration of cited precedents in this regard has caused GRAVE prejudice to assessee in this regard Notably Hon’ble Apex Court in case of DCIT vs Raghuveer synthetics (2017) 394 ITR 1 (SC) has held :(in this case Hon’ble Apex Court has held that once an issue/proposition is laid down by jurisdictional High court then same is not even debatable irrespective of views of other non jurisdictional high court(s)) ; refer Hon’ble Allahabad High Court in case of Mohanlals Antwani vs UOI 449 ITR 476 ; Hon’ble Bombay high court decision in case of HDFC bank ltd vs DCIT (2016) 383 ITR 529 : (2016) 284 CTR 414 on binding effect of jurisdictional high court decisions. 3. Gist of relevant decisions of HON’BLE JURISDICTIONAL DELHI HIGH COURT AND HON’BLE APEX COURT: (present cases Hon’ble Delhi High court/apex court has quashed reopening solely on issue of inadequate /mechanical sanction and present case stands on stronger footing as everything here as happened on 31.03.2016 which is treated as PROMPTNESS of revenue officials where as hon’ble courts has treated it as act of HASTE and NON APPLICATION OF MIND and even assessee was never provided anything with proforma of sanction u/s 151 ): 3.1 Hon’ble Apex court decision in case of ITO vs TIA ENTERPRISES PVT LTD SPECIAL LEAVE PETITION (CIVIL) Diary No(s). 33611/2024Date : 13-09-2024 while approving impugned hon’ble delhi high court decision in case of TIA ENTERPRISES PVT LTD VS ITO W.P.(C) 13903/2018 (26.09.2023) and dismissing revenue SLP by speaking order HELD “ In view of the categorical finding recorded in paragraph 13 of the impugned judgment and in the facts of the case, no case for interference is made out in exercise of our jurisdiction under Article 136 of the Constitution of India. The Special Leave Petition is accordingly dismissed” Relevant extract of Hon’ble Delhi High Court decision “9. On perusal of the impugned order dated 06.12.2018 whereby the objections filed by the petitioner were disposed of, we are unable to find anything contained 4 MA No.100/Del/2022 therein which would answer the poser raised on behalf of the petitioner by Mr Goel, which was that there was no application of mind whatsoever by the PCIT as to whether or not it was a fit case for triggering reassessment proceedings. 10. Mr Goel goes on to state that this very aspect was also emphasized in the writ petition. For this purpose, our attention has been drawn to paragraph 3.6 of the writ petition, which reads as follows: “3.6 Mechanical recording of reasons is glaring from column no 9 of reasons proforma wherein Ld AO has not cared to elucidate with accuracy on earlier assessment framed u/s 147/143(3) and has incorrectly mentioned as ''NA\" which is a fatal and non curable mistake in recording of reasons; Further in reasons recorded proforma in column no12 approval of PCIT-9 New Delhi is given in form of \"autograph\" only which shows brazen disregard to statutory prescription as no valid satisfaction is visible of Ld PCIT so as to fathom that PCIT has applied his mind to reasons recorded. Further mechanical approval is proved from fact that on date on which reasons are recorded and notice u/s 148 is issued, on very same date approval of PCIT in form of autograph is obtained. All these clubbed together shows highest level of non application of mind on part of every authority be it Ld AO or Ld PCIT.” 10.1. A perusal of the said paragraph would show that the petitioner has stated in no uncertain terms that except for the signature, there is nothing stated by the PCIT. In sum, the petitioner has asserted that this was a case of mechanical approval of commencement of reassessment proceedings by the PCIT, contrary to what the law requires 13. To our minds, approval granted by statutory authorities, as required under the provisions of the Act, has to be furnished to an assessee along with the reasons to believe. The statutory scheme encapsulated in the Act provides that reassessment proceedings cannot be triggered till the AO has reasons to believe that income, which is otherwise chargeable to tax, has escaped assessment and, reasons recorded by him are placed before the specified authority for grant of approval to commence the process of reassessment. 14. In this case, the sense we get is that the second condition requiring AO to obtain prior approval of the specified authority was not fulfilled, as otherwise, there was no good reason not to furnish the same to the petitioner along with the document which contained the AO’s reasons for holding the belief that income otherwise chargeable to tax had escaped assessment.” 3.2 Sec 151: SBC MINERALS PVT. LTD vs ACIT W.P.(C) 7885/2023 (20.08.2024) “ 15. It is evident that the approval order is bereft of any reasons. It does not even refer to any material that may have weighed in the grant of approval. The mere appending of the word “approved” by the PCCIT 5 MA No.100/Del/2022 while granting approval under Section 151 to the re-opening under Section 148 is not enough. While the PCCIT is not required to record elaborate reasons, he has to record satisfaction after application of mind. The approval is a safeguard and has to be meaningful and not merely ritualistic or formal. The reasons are the link between material placed on record and the conclusion reached by the authority in respect of an issue, since they help in discerning the manner in which the conclusion is reached by the concerned authority. Our opinion in this regard is fortified by the decision of the Apex Court in Union of India vs. M.L. Kapoor[AIR 1974 SC 87]. The grant of approval by PCCIT in the printed format without any line of reason does not fulfil the requirement of Section 151 of the Act.” 3.3 Sec 151: VINOD KUMAR SOLANKI VS ACIT W.P.(C) 4196/2022 (14.08.2024) “17. It is evident that the approval dated 28.03.2021 is in respect of 111 cases of reassessment. It is a general order of approval for all the 111 cases. There is not even a whisper as to what material had weighed in the grant of approval in the present case. While the PCIT is not required to record elaborate reasons, he has to record satisfaction after application of mind. The approval is a safeguard and has to be meaningful and not merely ritualistic or formal. The sanction order does not refer to the material of any of the 111 cases. The grant of approval in such a manner does not fulfil the requirement of section 151 of the Act.” 3.4 Sec 151: Hon’ble Delhi high court in case of The Pr. Commissioner of Income Tax-7 vs. Pioneer Town Planners Pvt. Ltd. [Delhi High Court order dated 20 February 2024 in ITA 91/2019] u/s151 (465 ITR 356) (“21. The salient aspect which emerges out of the foregoing discussion is that the satisfaction arrived at by the prescribed authority under Section 151 of the Act must be clearly discernible from the expression used at the time of affixing its signature while according approval for reassessment under Section 148 of the Act. The said approval cannot be granted in a mechanical manner as it acts as a linkage between the facts considered and conclusion reached. In the instant case, merely appending the phrase “Yes” does not appropriately align with the mandate of Section 151 of the Act as it fails to set out any degree of satisfaction, much less an unassailable satisfaction, for the said purpose”) In above decision the hon’ble high court has taken note of ESS ADVERTISING 437 ITR 1 as follows “20. This Court, while following ChhugamalRajpal in the case of Ess Adv. (Mauritius) S. N. C. Et Compagnie v. ACIT [2021 SCC OnLine 6 MA No.100/Del/2022 Del 3613], wherein, while granting the approval, the ACIT has written“This is fit case for issue of notice under section 148 of the Income- tax Act, 1961. Approved”, had held that the said approval would only amount to endorsement of language used in Section 151 of the Act and would not reflect any independent application of mind. Thus, the same was considered to be flawed in law. “ This decision is further followed by this hon’ble court in following subsequent chain of decisions (covering same type of approval u/s 151 held to be invalid: i) PCIT vs OMKAM DEVELOPERS LTD ( ITA 235/2022 dated 13.03.2022) ii)) PCIT vs M/S SOUMYA TRADECOM PVT LTD (ERST. SOUMYA INFRATECH P LTD.) (ITA 197/2024 ORDER dated 22.03.2024 where approval was as noted “As we read the order of the ITAT, it has essentially found fault with the approval as accorded in terms of the Section 151 of the Income Tax Act, 1961 [“Act”] with the Principal Commissioner of Income Tax [“PCIT”] merely penning the words “approved”) and iii) PCIT vs Kamal Kapoor ITA 14/2024 order dated 06 March 2024 (here mere word “approved” is not valid sanction u/s 1 3.5 Sec 151 Hon’ble Delhi high court decision in case of Sanjay Kumar vs ACIT 458 ITR 548 (Held “22. The injury to the respondent is compounded by the fact that respondent no. 2 while sanctioning the commencement of reassessment proceedings, has simply rubber- stamped the proposal by making the following endorsement: “Yes, I am satisfied that this is a fit case for action under Section 147 of I.T. Act.” 23. Given the explanation provided by the petitioner in his reply to the notice issued under Section 133(6) of the Act and in the objections filed by him, this approach certainly does not sit well with us. The courts have repeatedly disapproved of approvals/sanctions granted for the commencement of reassessment proceedings, which are undoubtedly a serious business, by the superior officers without applying their mind to the material on record. 23.1 The following observations made by the Division Bench of this court in SynfoniaTradelinks Pvt. Ltd. v Income Tax Officer, Ward 22(4) (2021) 435 ITR 642, being pertinent, are set forth hereafter:.._”) 3.6 Hon’ble Bombay High court in case of the standard cooperative bank Ltd vs ACIT (26 Aug 2024) while quashing impugned reopening action u/s 148 for want of invalid mechanical sanction held notably \"machinery u/s 151 has miserably failed\" regards kapilgoeladv22. The requirement for sanction by a high-ranking official under Section 151, is an inherent check and balance in the statutory scheme of the Act. Such officers are expected to apply their mind to the facts and the applicable law and then accord sanction. In the instant case, the proposed reassessment was sanctioned by the Principal 7 MA No.100/Del/2022 Commissioner of Income-tax, with the following remarks:-“Yes, I am satisfied with the reasons recorded by the A.O. for issuance of Notice u/s 148 of the I.T. Act, 1961.” [Emphasis Supplied] 23. The power to sanction reassessment under Section 151, is coupled with a duty to exercise such power reasonably, and not arbitrarily. It is trite law that absence of valid reasons constitutes arbitrariness. In the instant case, the entire process of according sanction demonstrates non-application of mind to the ingredients of Section 147, rendering the sanction to be arbitrary, calling for intervention by a writ court. Evidently, the proposal, the recommendation and the approval in the instant case was mechanical, without either application of mind to the law and the facts or even a modicum of how the ingredients of the law had been met. In short, the machinery under Section 151 completely failed” 3.7 Hon’ble Delhi high court in case of CAPITAL BROADWAYS PVT LTD VS ITO (03RD OCT 2024) HELD “20. As explained in the above cases, mere repeating of the words of the statute, mere rubber stamping of the letter seeking sanction or using similar words like “Yes, I am satisfied” will not satisfy the requirement of law. Hence, we are of the firm view that PCIT has failed to satisfactorily record his concurrence. The mere use of expression “Yes, I am satisfied” cannot be considered to be a valid approval as the same does not reflect an independent application of mind. The grant of approval in such manner is thus flawed in law” 4. Humble Prayer: The issue of sanction u/s151 based on cited decision of ESS ADVERTISING 437ITR 1 and subsequent delhi high court and Hon’ble Apex Court decisions may please be suitably rectified in light of above stated chain of jurisprudence. ON PROPOSITION that subsequent decision of hon’ble jurisdictional high court on the issue /proposition laid down can give rise to mistake apparent from record u/s 254(2) of 1961 Act; reference is made to: hon’ble High Court of Gujarat in Suhrid Geigy Limited v. Commissioner of Surtax, Gujarat, (1999) 237 ITR 834 (Guj). 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 to be \"mistake apparent from the record\" under Section 254 (2) of the Act and could be corrected by the Tribunal; noted with approval by hon’ble apex court in case of Saurashtrakutch stock exchange 305 ITR 227; also refer same view by hon’ble Gujarat high court in case of CIT vssubodhcnandrapatel (2004) 265 ITR 445;In KilKotagiri Tea and Coffee Estates Co. Ltd. v. ITAT, [1988] 174 ITR 579, the Kerala High Court held that an order of assessment based 8 MA No.100/Del/2022 upon an interpretation or application of law which is ultimately found to be wrong in the light of judicial pronouncements rendered subsequently, discloses a mistake apparent from the record; The Karnataka High Court in Mysore Cements Ltd. v. Deputy Commissioner of Commercial Taxes, [1994] 93 STC 464, observed that it was needless to point out that when a point is covered by a decision of the Supreme Court or concerned High Court, either rendered prior to or subsequent to the order proposed to be rectified, then the point ceases to be a debatable point and it also ceases to be a point requiring elaborate arguments or detailed investigation/enquiry. The Andhra Pradesh High Court in B.V.K. Seshavataram v. CIT, [1994] 210 ITR 633, following the ratio of the decision of the Supreme Court in S.A.L. Narayana Row, [1967] 64 ITR 67, came to the conclusion that a subsequent decision can form the valid basis for rectifying an order of assessment under section 154 of the Income-tax Act, 1961; Hon’ble Punjab & Haryana high court (full bench) in case of CIT vs. Smt. Aruna Luthra (2001) 252 ITR 76 (P&H) held “once the jurisdictional High Court or Supreme Court decides a particular issue, the judgment of jurisdictional High Court/Supreme Court would relate back to the date when particular section was inserted in the Act ; that rectification proceedings can be initiated on basis of decision of jurisdictional high court or supreme court subsequent to order passed by authority under 1961 Act; \" 4. Ld. DR submitted that ITAT has considered facts brought on record by the assessee and appreciated also, however failed to adjudicate Grounds No.1.2, 5 and issue of sanction obtained u/s 151 was submitted before the Bench in detail by relying on the decision of ESS Advertising in 437 ITR 1. However, the Bench has not considered the above decision while adjudicating the crucial issue under consideration. Ld. AR prayed that the above grounds which were not adjudicated may be recalled afresh. 5. On the other hand, ld. DR of the Revenue brought to our notice page 138 of the Tribunal order and submitted that in para 112, the ITAT rejected the argument raised by the assessee in clear terms that the relevant information has not been given to the assessee cannot be accepted. Further he submitted that the copy of 9 MA No.100/Del/2022 the reasons has also been supplied to the assessee, inspection of the record has also been made by the counsel, therefore, by relying on the decision of Hon’ble Supreme Court in the case of Reliance Telecom Limited reported in 133 taxmann.com 41 on 3RD December 2021, he submitted that there is no mistake apparent on record and the plea of the assessee may not be entertained. 6. Considered the rival submissions and material available on record. We observed that the ld. AR brought to our notice page 129 of the Tribunal order from paras 92 to 94. We observed that at Para No.85 the Bench has recorded the submission of the assessee as under :- “85. Further, the ld. AR argued as to whether when repeated request made from appellant side to share relevant investigation wing information which is made basis to reopen the case as referred in reasons recorded, as obtained by Ld AO, so as to rebut it, same is categorically denied in final impugned assessment order at point viii page 7 thereof and said information much less its enclosures, is nowhere confronted to assessee despite specific request, is a serious violation of GKN Driveshaft procedure and mandate of sec. 142(3) of the Act? We strongly rely on recent Hon’ble Apex court decision in NDTV case 424 ITR 607 and further recent Delhi C bench decision in Sur Buildcon case dated 15.07.2021 where on same facts, proceedings are quashed by Hon’ble ITAT applying sec. 142(3) of the Act. This is further supported by last paragraph no. 11.3 of Hon’ble Delhi lush court decision in syunfonia case 435 ITR 642.” 7. While dealing with the issue at Para No.94 & 111, the same are reproduced below : “94. The main argument of the ld. Counsel was that four incidences viz., 1) receipt of information 2) drafting of reasons 3) approval by ld. PCIT 4) issue of notice on the same date shows non-application of mind and mechanical approval. Having gone through the entire record as mentioned above, we find that the arguments of the ld. Counsel cannot be sustained. We find that the enquiries by the investigation are pointed, logical and focused. There has been no allegation except facts brought above with regard to opening of the account and credits thereof. The 10 MA No.100/Del/2022 reason of the Assessing Officer clearly mentioned that the AO has applied his mind verified the Income Tax Return of the assessee, gone through the bank statement wherein the credits are appearing. We see no reason for the Assessing Officer to disbelief or suspect the certified bank statement and if this cannot be a reason to believe there cannot be no other reason that can be espoused. While the citizen and public are disgruntled regarding the apathy, red tapism and delays in various bureaucratic and judicial procedures, the prompt action taken by the revenue authorities in this case cannot be looked with contempt, rather it is highly appreciable. Keeping the file for longer time, mulling over issue cannot be considered as a sign of application of mind and taking prompt decision must not be taken as non-application of mind nor mechanical action by the authorities. Urgent needs invite urgent action. The need to take a prompt, immediate decision which is rationale and judicious is always preceded by pressing reasons in various situations. In the instant case, the information received from the investigation being has been acted upon in a judicious way and the same has been rolled up by the revenue authorities. Such action cannot be faulted with. The action can be said to be borrowed, mechanical, non- application of mind based on the facts of each case. In the instant case, on going through the entire records, we find that there were no theoretical postulates involved in the information or the reasoning recorded by the revenue authorities. Not only that, we have also gone through the satisfaction recorded by the ld. PCIT. The record clearly proves that the entire information has been sent to the ld. PCIT and the ld. PCIT after perusal of the record has accorded the approval and the records have been duly returned. The ld. CIT(A) has sufficient material before him to arrive at a conclusion to accord statutory approval u/s 151(1). The action of the non-application of mind by the ld. PCIT can be upheld only in cases where the reasons recorded are wrong or the statutory provisions invoked are incorrect or where there is no nexus between the material available and the satisfaction and belief with regard to the escapement of income is incorrectly derived. This is not a case where the ld. PCIT has given a mechanical approval disregarding the factual inaccuracies recorded by the Assessing Officer. The copy of the bank statement bearing A/c No. 0419073000000213 maintained with South Indian Bank, Gurgaon and bank A/c No. 358073000002431 maintained at Chitranjan Park Branch are also a part of the record before the ld. PCIT which has been duly considered along with the reasoning of the AO on the report of the ADIT(Inv.) before according the approval. ……. 111. At the time of reopening what is required is reasons to believe with regard to escapement of income, the Assessing Officer is not 11 MA No.100/Del/2022 required to establish escapement of income. Establishing escapement of income is the culmination of examination of material and investigation of the facts following the due procedure as envisaged in the Income Tax Act. What is necessary to reopen an assessment is not a final verdict but a prima facie reason. In the instant case, neither the information was wrong nor the reasons to believe were faltered. Hence, we uphold the action of revenue authorities on the issue of impugned u/s 148.” 8. they have discussed the issue in detail but failed to adjudicate the issue raised by the assessee in Ground No.1.2 9. Further with regard to ground no.5, he brought to our notice page 64 of the Tribunal order wherein assessee’s submission was extracted, however at page 151 of the appellate order, ITAT has discussed the issue of section 68 elaborately, however not adjudicated specific ground no.5 raised by assessee that no addition u/s 68 can be made merely relying upon the bank statement which was never in the books of account of the assessee. However, they have recorded in Para No.61 as under :- “61. On 5th issue our first leg of contention is: we humbly submit that entire assessment is based on direction and dictate of investigation wing as it is clear that sec. 68 is applied to case where assessee is neither maintaining books of account u/s 2(12A) nor there is any requirement on part of assessee to do so u/s 44AA which is vindicated from fact that revenue has not initiated any penalty u/s 271A for non maintenance of books of account we rely on following chain and long line of precedents to argue that sans books of accounts being positively maintained by assessee, scope of applicability of section 68 gets ousted: Delhi ITAT F bench decision in Vijay Kumar Prop V.K. Medical Hall order dated 27.11.2918 Delhi ITAT B bench decision in Inder Singh case order dated 05.12.2018 Mumbai C bench ITAT decision in case of Palimar Gopal Shetty order dated 26.8.2020 Bombay high court decision in case of Manisha M Shah order dated 27.06.2016 ITA 2432/2013- referring Bhai chand Gandhi 141 ITR 67, Baladin Ram 71 ITR 427 Mumbai bench E ITAT decision in case of Ekta Housing Pvt. Ltd. para 30 of the decision order dated 24.05.2021 (Sec 2(12A) analysed in detail 12 MA No.100/Del/2022 Chennai bench D ITAT decision in case of GSNR Rice Industries Pvt. Ltd. order dated 09.06.2021 sec. 2(12a) analysed in length Hon’ble Allahabad high court decision in case of Sarita Devi 407 ITR 254” 10. While dealing the issue of section 68 elaborately as under :- “….secondly, addition u/s 68 has rightly been made as assessee has failed to offer any explanation with regard to nature and source of credit inhis bank account and primary burden case upon the assessee for proving the credits has not been discharged either before AO or ld. CIT (A) or before us. Accordingly, the action u/s 147/148 as well as the addition made u/s 68 is hereby affirmed.” 11. The issue raised by the assessee which was recorded at Para No.61 was not addressed. 12. Further with regard to approval u/s 151 of the Act, the sanctioning authority had merely recorded, ‘Yes I am satisfied’ and this issue under consideration is a debatable issue and after considering the submissions of the assessee, there is no specific finding given by the coordinate Bench. The Bench has recorded the submission of the assessee as under :- “84. The ld. AR has also raised the issue as to whether instant approval of PCIT dated 31.03.2016 u/s 151of the Act in terms of endorsement of “1 AM SATISFIED” can sustain on its own given the present facts? We rely on Hon’ble jurisdictional recent Delhi High Court two decisions reported at 437 ITR 1 & 435 ITR 642 to plead same are non starter and further held to be inadequate in so many cases by this Hon’ble ITAT.” 13. However, while dealing with the issue in Para no.107, it was held as under :- “107 Synphonia Trade Links Pvt. Ltd. – Deals with invalid approval – In the instant case reasons are discernable and rationale neither arbitrary nor illogical.” 14. From the above, we observed that the Bench has not considered the various decisions specifically the decision of Hon’ble Delhi High Court in the case of ESS Advertising 433 ITR 1 and other decisions. Not considering some binding decisions are also mistake apparent on record. 13 MA No.100/Del/2022 15. We observed that in the similar situation, the coordinate Bench in MA No.92/Del/2020 in the case of M/s. M.A. Projects (P) Ltd. vs. DCIT order dated 10.10.2023 (supra) held as under :- “6. In the instant case of miscellaneous application, we are not revisiting the case on merits, but instead, we are only stating the fact that the decision of Hon'ble Jurisdictional High Court relied upon by the assessee had not been considered by the tribunal and whether the decision of Hon'ble Supreme Court in the case of NRA Iron & Steel referred supra had been correctly applied while passing the appellate order. Hence in our considered opinion and respectfully following the decisions of Hon'ble Supreme Court in the case of ACIT vs Saurashtra Kutch Stock Exchange Ltd reported in 305 ITR 227 (SC) and Honda Siel Products reported in 295 ITR 466 (SC), we are inclined to recall the order passed by the tribunal in ITA No. 402/De1j2015 dated 9.8.2019 only for the limited purpose of applicability of the decision of Hon'ble Jurisdictional High Court in the case of CIT vs Gangeshwari Metal P Ltd reported in 361 ITR 10(Del) and the decision of Hon'ble Apex Court in the case of NRA Iron & Steel reported in 412 ITR 161 (SC) to the facts of the instant case. Registry is directed to fix the main appeal for hearing on 29.11.2023 after issuing notices to both the parties.” 16. The facts in the present MA also similar to the above facts. We are inclined to follow the same and recall the order with limited purpose of adjudicating the specific three grounds. Therefore, we direct the Registry to post the case in due course. 17. Other issues raised by the assessee were not pressed at the time of hearing. Hence the issues are dismissed as such. 18. In the result, the misc. application filed by the assessee is partly allowed. Order pronounced in the open court on this 9th day of April, 2025. Sd/- sd/- (SUDHIR KUMAR) (S.RIFAUR RAHMAN) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated: 09.04.2025 TS 14 MA No.100/Del/2022 Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals). 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI "