SUDHA SURANA,NEW DELHI V. I.T.O., WARD - 61(3), KOLKATA, KOLKATA

ITA 1372/KOL/2024

AI Insights

The case involves Sudha Surana, the appellant, who contested the reopening of her income tax assessment for the assessment year 2015-16. The Income Tax Officer (ITO) had reopened her case under Section 147 read with Section 148 of the Income Tax Act, alleging unexplained income/credit. The appellant argued that the reopening was invalid due to lack of proper reasoning and mechanical approval by the PCIT. The tribunal examined the reasons for reopening and the approval process, ultimately deciding in favor of the appellant, citing precedents that disallow mechanical and unreasoned approvals for reopening assessments.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 25402 (ITAT-KOLKATA)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-04-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2015-2016
• Other Referred Cases: CIT vs. Insecticides (India) Ltd., Capital Broadways Pvt. Ltd. Vs. ITO, Principal Commissioner of Income Tax-6 Vs. Meenakshi Overseas Pvt. Ltd., CIT Jabalpur vs. S. Goyanka Lime & Chemicals Ltd., Ess Adv. (Mauritius) S. N. C. Et Compagnie v. ACIT, Central India Electric Supply Co. Ltd. v. ITO
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: H. ROBINDRO SINGH
• Assessee Lawyers: KAPIL GOEL
• Keywords: Set aside; Reopening of assessment; Competent authority
• Section: 147; 148; 144; 142(1); 143(2); 143(1); 64; 68

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL “C” BENCH, KOLKATA BEFORE SHRI RAJESH KUMAR, AM AND SHRI SONJOY SARMA, JM ITA No.1372/KOL/2024 (Assessment Year: 2015-16) Sudha Surana C/o Kapil Goel, Advocate, F-26/124, Sector 7, Rohini, New Delhi-110085 Vs. ITO Ward-61(3) Bamboo villa, Central Revenue Building, 169, A.J.C. Bose Road, Kolkata-700014, West Bengal (Appellant) (Respondent) PAN No. ADEPB5526F Assessee by : Dr. Kapil Goel, AR Revenue by : Shri H. Robindro Singh, DR Date of hearing: 06.02.2025 Date of pronouncement : 01.04.2025 O R D E R Per Rajesh Kumar, AM: This is an appeal preferred by the assessee against the order of the National Faceless Appeal Centre, Delhi (hereinafter referred to as the “Ld. CIT(A)”] dated 18.12.2023 for the AY 2015-16. 02. At the outset, we observed that there is a delay of 122 days in filing the appeal by the assessee. The ld. Counsel for the assessee stated that the CA, who was looking after the taxation matter of the assessee ,out of inadvertence and oversight missed to prepare/ file the appeal before the Tribunal. Immediately after coming to know about this, assessee contacted the present counsel, who advised the assessee to file the appeal along with condonation application. The ld. Counsel for Page | 2 ITA No.1372/KOL/2024 Sudha Surana; A.Y. 2015-16 the assessee stated that the assessee has not delayed the appeal intentionally or nor benefited in any manner from the delayed filing whatsoever. Therefore, in the interest of justice and fair play, the delay may be condoned and appeal may be admitted for adjudication. 03. The ld. DR on the other hand stated that the reasons stated by the Counsel of the assessee are not cogent and convincing and therefore, the appeal of the assessee should not be admitted by not condoning the delay. 04. After perusing the contents of the condonation application, we find that the delay is for bonafide and genuine reasons, delay is condoned and the appeal is admitted for adjudication. 05. The legal issue raised by the assessee is against the invalid reopening of assessment u/s 147 read with section 148 of the Act without any application of mind and without there being a proper approval of the competent authority. 06. The facts in brief are that the assessee filed the return of income on 28.08.2015, declaring total income at ₹36,10,940/- after claiming deduction under Chapter VIA of ₹1,85,000/-. The return was processed u/s 143(1) of the Act. Thereafter, the case of the assessee was reopened u/s 147 of the Act by issuing notice u/s 148 of the Act on 31.03.2021, by the ld. AO which was complied with by the assessee by filing the return of income on 30.04.2021. Thereafter, the statutory notices were duly issued and served upon the assessee. The statutory notices u/s 143(2) of the Act as well as notice u/s 142(1) of the Act were complied with by the assessee by filing the details/ evidences as called for by the ld. Assessing Officer. Finally, the ld. AO Page | 3 ITA No.1372/KOL/2024 Sudha Surana; A.Y. 2015-16 made the addition u/s 68 of the Act on account of unexplained income/ credit of ₹90,45,180/-. 07. In the appellate proceedings, the ld. CIT (A) dismissed the legal issue of invalid reopening of assessment u/s 143 read with section 148 of the Act thereby upholding the re-opening of assessment. 08. The ld. AR vehemently submitted before us that the reopening of assessment u/s 147 read with section 148 of the Act has been made by the ld. AO without any application of mind and also without there being any valid approval given by the competent authority. The ld. AR referring to the reasons recorded which are extracted on page no.2 of the assessment order submitted that even the amount mentioned in the reasons recorded were different and therefore, there has been no application of mind by the ld. AO and therefore the reasons recorded are vague and scanty. The ld AR argued that the re-opening of assessment based on the ambiguous and scanty reasons is invalid. In defense of his arguments the ld counsel relied on the decision of Hon’ble Delhi High Court in the case of CIT vs. Insecticides (India) Ltd. (2013) 38 taxmann.com 403 (Delhi), Besides the ld. AO has not recorded any details of transactions of the assessee in the reasons recorded u/s 148(2) of the Act to record his satisfaction and therefore, the reopening made on the basis of said reasons is invalid and deserved to be quashed. Besides the ld. AR while referring to page no. 162 of the Paper Book which is the approval granted u/s 151 of the Income-tax Act, 1961 (the Act) by the ld. PCIT, Kolkata-18, wherein it has been stated in the approval status as ‘approved’ and also in the remark of approving authority as ‘approved’. The ld. Counsel for the assessee submitted that such mechanical approval by the ld. PCIT, Kolkata-18, is invalid as the same is mechanical and is a Page | 4 ITA No.1372/KOL/2024 Sudha Surana; A.Y. 2015-16 invalid approval with no application of mind and recording of satisfaction. In order to buttress his arguments, the ld. AR relied on the decision of Hon'ble Delhi High Courtin case of Capital Broadways Pvt. Ltd. Vs. ITO in WP(C) 4303/ 2017 dated 03.10.2024, wherein the Hon'ble court has decided the similar issue by holding that mere mechanical manner of approval is not valid and the reopening made based upon that said approval is bad in law. 09. The ld. DR on the other hand submitted that this is a system of the department involving the administrative hierarchy where the files are moved for the approval with all details , notings and explanation. The ld DR argued that it is only after going through the same, the higher ups granted the approval/ sanction on the same. Accordingly, in this case also when the file was put up before the ld. PCIT, the said authority granted the approval after perusing the detailed notings and mentioned as satisfied as a token of having granted approval for reopening. Therefore, the ground raised by the assessee may be dismissed. 010. After hearing the rival contentions and perusing the materials available on record, we find that in this case of the assessee was reopened u/s 147 of the Act by issuing notice u/s 148 of the Act on 31.03.2021. Perusal of the reasons recorded states that there is no application of mind by the ld. AO to the information received and even the amounts stated in the reasons recorded are different and conflicting. At one place the ld. AO stated that the assessee has entered into fictious profit in equity / derivative trading to the tune of ₹95,62,800/-, whereas in the very next line it was stated that the assessee had claimed an amount of ₹92,25,773/- as exempted Long Term Capital Gain on which STT, was paid. Finally, the ld. AO noted Page | 5 ITA No.1372/KOL/2024 Sudha Surana; A.Y. 2015-16 that the income of ₹95,62,800/- was required to brought to tax as the same has escaped assessment. Moreover, the ld. AO has not given any details of transactions entered into by the assessee such as the date of transactions, with whom the transactions were entered into and therefore, reasons recorded are devoid of any detailed information about the transactions for which the assessee has escaped income. We observe that the reasons recorded by the ld. AO is scanty, vague and ambiguous. The ld. AO has just reopened the case of the assessee based on the information received without any independent application of mind. We note that there is no mention of details of transactions, mode of payment, amount received by the assessee and also the details from whom the money was received by the assessee. In our opinion, the reopening of assessment cannot be allowed on the basis of such vague reasons, where the ld. AO has not done anything as there was gross non-application of mind by the ld. Assessing Officer. Under these circumstances, we are not in a position to sustain the reopening of assessment. The case of the assessee find support from the decision of Hon’ble Delhi High court in the CIT vs. Insecticides (India) Ltd. (2013) 38 taxmann.com 403 (Delhi), wherein the Hon'ble High Court has held that the reopening of assessment cannot be allowed on the basis of scanty, vague reasons, wherein the ld. AO has not mentioned in the reasons recorded the details of transactions and also the details of persons / entity from whom the money was received by the assessee. 011. Similarly, the approval has been granted in a mechanical manner, wherein it was only mentioned in the approval status as approved. In our opinion, in the case of the assessee, such an approval is mechanical approval and cannot be considered as valid approval. In our opinion, the PCIT has to record the reasons and the satisfaction Page | 6 ITA No.1372/KOL/2024 Sudha Surana; A.Y. 2015-16 for having granted such approval. In our opinion, the reopening of assessment on the basis of said approval is bad in law. Case of the assessee find force from the decision of Capital Broadways Pvt. Ltd. Vs. ITO (supra), wherein Hon'ble HC has held that the approval granted by the ld. PCIT by just using the words like ‘yes, I am satisfied’ will not satisfied the requirement of law and accordingly, the notice was set aside. The operative part of the decision is extracted below:- “10. Section 151(1) of the Act categorically provides that no notice shall be issued under Section 148 by the Assessing Officer, after expiry of period of four years from the end of the relevant assessment year, unless the Principal Chief Commissioner or Commissioner or Principal Commissioner or Commissioner is satisfied on the reasons recorded by the Assessing Officer that it is a fit case for the issue of such notice. In the present case, since reopening was beyond the period of four years, it was for the PCIT to record satisfaction for reopening the assessment. In the case of SBC Minerals Pvt. Ltd. vs. Assistant Commissioner of Income Tax Circle 22(2), Delhi, WP (C) 7885/2023, we had clearly held that prescribed authority referred to in Section 151 must be \"satisfied\" on the reasons recorded by the Assessing Officer that it is a fit case for the issuance of such notice and therefore the satisfaction of the prescribed authority is a sine qua non for a valid approval. We had also held that the competent authority must apply its mind independently on the basis of material placed before it before grant of the sanction. 11. While dealing with the scope and requirement under Section 151 of the Act for initiating proceedings under Section 147 read with 148 of the Act, this Court in the case of Yum! Restaurants Asia Pte. Ltd v. Deputy Director of Income Tax (2017) 397 ITR 665, held as under:- \"11. The purpose of Section 151 of the Act is to introduce a supervisory check over the work of the AO, particularly, in the context of reopening of assessment. The law expects the AO to exercise the power under Section 147 of the Act to reopen an assessment only after due application of mind. If for some reason, there is an error that creeps into this exercise by the AO, then the law expects the superior officer to be able to correct that error. This explains why Section 151 (1) requires an officer of the rank of the Joint Commissioner to oversee the decision of the AO where the return originally filed was assessed under Section 143 (3) of the Act. Further, where the reopening of an assessment is sought to be made after the expiry of four years from the end of the relevant AY, a further check by the further superior officer is contemplated.\" 12. We take note that request for approval under Section 151 of the Act in a printed format (Annexure P-6) was placed before the ACIT, who after according his Page | 7 ITA No.1372/KOL/2024 Sudha Surana; A.Y. 2015-16 satisfaction, placed the same before the PCIT. PCIT granted the approval on the very same day. The approval accorded by the ACIT and PCIT in Column No. 11 & 12 are extracted below:- \"11. Whether the Addl. CIT is satisfied on the reasons recorded by AO that it is a fit Case for the issue of notice u/s 148. I am satisfied Sd/- (G.G. Kamei) Addl. CIT, Range-5, New Delhi Dated 22.03.2017 12. Whether the Pr. Commissioner is satisfied: On the reasons recorded by the AO that it is a fit case for the issue of notice u/s 148. Yes I am satisfied Sd/- P.K. Gupta) Pr. Commissioner of Income Tax-2, New Delhi Dated: 22.03.2017\" 13. The satisfaction arrived at by the concerned Officer should be discernible from the sanction order passed under Section 151 of the Act. However, as may be seen, the approval order is bereft of any reason. There is no whisper of any material that may have weighed for the grant of approval. 14. Even the bare minimum requirement of the approving authority having to indicate what the thought process was, is missing in the afore- mentioned approval order. While elaborate reasons may not have been given, at least there has to be some indication that the approving authority has examined the material prior to granting approval. Mere appending the expression \"Yes I am satisfied\" says nothing. The entire exercise appears to have been ritualistic and formal rather than meaningful, which should be the rationale for the safeguard of an approval by a high ranking official. 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. 15. This Court in the case of The Principal Commissioner of Income Tax-7 vs. Pioneer Town Planners Pvt. Ltd. (2024) SCC OnLine Del 1685, while dealing with an identical challenge of approval, having been accorded mechanically, had held as under:- \"13. The primary grievance raised in the instant appeal relates to the manner of recording the approval granted by the prescribed authority under Section 151 of the Act for reopening of assessment proceedings as per Section 148 of the Act. xxxx xxxx xxxx 17. Thus, the incidental question which emanates at this juncture is whether simply penning down \"Yes\" would suffice requisite satisfaction as per Section 151 of the Act. Reference can be drawn from the decision of this Court in N. C. Cables Ltd., wherein, the usage of the expression \"approved\" was considered to be merely ritualistic and formal rather than meaningful. The relevant paragraph of the said decision reads as under:- Page | 8 ITA No.1372/KOL/2024 Sudha Surana; A.Y. 2015-16 \"11. Section 151 of the Act clearly stipulates that the Commissioner of Income- tax (Appeals), who is the competent authority to authorize the reassessment notice, has to apply his mind and form an opinion. The mere appending of the expression \"approved\" says nothing. It is not as if the Commissioner of Income-tax (Appeals) has to record elaborate reasons for agreeing with the noting put up. At the same time, satisfaction has to be recorded of the given case which can be reflected in the briefest possible manner. In the present case, the exercise appears to have been ritualistic and formal rather than meaningful, which is the rationale for the safeguard of an approval by a higher ranking officer. For these reasons, the court is satisfied that the findings by the Income-tax Appellate Tribunal cannot be disturbed.\" 18. Further, this Court in the case of Central India Electric Supply Co. Ltd. v. ITO [2011 SCC OnLine Del 472] has taken a view that merely rubber stamping of \"Yes\" would suggest that the decision was taken in a mechanical manner. Paragraph 19 of the said decision is reproduced as under: - \"19. In respect of the first plea, if the judgments in Chhugamal Rajpal (1971) 79 ITR 603 (SC), Chanchal Kumar Chatterjee (1974) 93 ITR 130 (Cal) and Govinda Choudhury and Sons case (1977) 109 ITR 370 (Orissa) are examined, the absence of reasons by the Assessing Officer does not exist. This is so as along with the proforma, reasons set out by the Assessing Officer were, in fact, given. However, in the instant case, the manner in which the proforma was stamped amounting to approval by the Board leaves much to be desired. It is a case where literally a mere stamp is affixed. It is signed by an Under Secretary underneath a stamped Yes against the column which queried as to whether the approval of the Board had been taken. Rubber stamping of underlying material is hardly a process which can get the imprimatur of this court as it suggests that the decision has been taken in a mechanical manner. Even if the reasoning set out by the Income-tax Officer was to be agreed upon, the least which is expected is that an appropriate endorsement is made in this behalf setting out brief reasons. Reasons are the link between the material placed on record and the conclusion reached by an authority in respect of an issue, since they help in discerning the manner in which conclusion is reached by the concerned authority. Our opinion is fortified by the decision of the apex court in Union of India v. M. L. Capoor, AIR 1974 SC 87, 97 wherein it was observed as under: \"27.. .. We find considerable force in the submission made on behalf of the respondents that the 'rubber stamp' reason given mechanically for the supersession of each officer does not amount to 'reasons for the proposed supersession'. The most that could be said for the stock reason is that it is a general description of the process adopted in arriving at a conclusion. 28.... If that had been done, facts on service records of officers considered by the Selection Committee would have been correlated to the conclusions reached. Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject-matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or Page | 9 ITA No.1372/KOL/2024 Sudha Surana; A.Y. 2015-16 decisions recorded be shown to be manifestly just and reasonable.\"(emphasis supplied).\" 19. In the case of Chhugamal Rajpal, the Hon‟ble Supreme Court refused to consider the affixing of signature alongwith the noting \"Yes\" as valid approval and had held as under:- \"5. --- Further the report submitted by him under Section 151(2) does not mention any reason for coming to the conclusion that it is a fit case for the issue of a notice under Section 148. We are also of the opinion that the Commissioner has mechanically accorded permission. He did not himself record that he was satisfied that this was a fit case for the issue of a notice under Section 148. To Question 8 in the report which reads \"whether the Commissioner is satisfied that it is a fit case for the issue of notice under Section 148\", he just noted the word \"yes\" and affixed his signatures thereunder. We are of the opinion that if only he had read the report carefully, he could never have come to the conclusion on the material before him that this is a fit case to issue notice under Section 148. The important safeguards provided in Sections 147 and 151 were lightly treated by the Income Tax Officer as well as by the Commissioner. Both of them appear to have taken the duty imposed on them under those provisions as of little importance. They have substituted the form for the substance.\" 20. This Court, while following Chhugamal Rajpal in the case of Ess Adv. (Mauritius) S. N. C. Et Compagnie v. ACIT [2021 SCC OnLine Del 3613], wherein, while granting the approval, the ACIT \"This is fit case for issue of notice under section 148 ofhas written 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. 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. 22. So far as the decision relied upon the Revenue in the case of Meenakshi Overseas Pvt. Ltd. is concerned, the same was a case where the satisfaction was specifically appended in the proforma in \"Yes, I am satisfied\". Moreover, paragraph 16 ofterms of the phrase the said decision distinguishes the approval granted using the expression \"Yes\" by citing Central India Electric Supply, which has already been discussed above. The decision in the case of Experion Developers P. Ltd. would also not come to the Page | 10 ITA No.1372/KOL/2024 Sudha Surana; A.Y. 2015-16 rescue of the Revenue as the same does not deal with the expression used in the instant appeal at the time of granting of approval. 23. Therefore, it is seen that the PCIT has failed to satisfactorily record its concurrence. By no prudent stretch of imagination, the expression \"Yes\" could be considered to be a valid approval. In fact, the approval in the instant case is apparently akin to the rubber stamping of \"Yes\" in the case of Central India Electric Supply.\" 16. In the case of Principal Commissioner of Income Tax-6 Vs. Meenakshi Overseas Pvt. Ltd. ITA 651/2015, while reiterating that the satisfaction has to be accorded on the reasons recorded by the Assessing Officer that it is a fit case for the issue of such notice, the Court noted that by writing the words \"Yes, I am satisfied\" the mandate of Section 151(1) of the Act as far as approval of Additional CIT was concerned, stood satisfied. However, we may take note that such finding was arrived at by the Court in light of the fact that Additional CIT addressed a letter to the ITO stating as under:- \"In view of the reasons recorded under Section 148(2) of the IT Act, approval for issue of notice under Section 148 is hereby given in the above-mentioned case, you are, accordingly directed to issue notice under Section 148 and submit a compliance report in this regard at the earliest.\" 17. Such letter sent by the Additional CIT to the ITO clearly reveals that the sanction was accorded after due application of mind and on considering the reasons narrated by the Assessing Officer. However, in the present case, there is no such material to come to the conclusion that PCIT granted approval after considering the reasons assigned by the Assessing Officer. The decision rendered in Meenakshi Overseas Pvt. Ltd. (supra), is therefore not applicable to the facts and circumstances of the present case. 18. Dealing with an identical challenge where the competent authority just recorded \"Yes I am satisfied\", the Madhya Pradesh High Court in the case of CIT Jabalpur vs. S. Goyanka Lime & Chemicals Ltd. ITA 82/2012, held as under:- \"7. We have considered the rival contentions and we find that while according sanction, the Joint Commissioner, Income Tax has only recorded so \"Yes, I am satisfied\". In the case of Arjun Singh (supra), the same question has been considered by a Coordinate Bench of this Court and the following principles are laid down:- \"The Commissioner acted, of course, mechanically in order to discharge his statutory obligation properly in the matter of recording sanction as he merely wrote on the format \"Yes, I am satisfied\" which indicates as if he was to sign only on the dotted line. Even otherwise also, the exercise is shown to have been performed in less than 24 hours of time which also goes to indicate that the Commissioner did not apply his mind at all while granting sanction. The satisfaction has to be with objectivity on objective material. Page | 11 ITA No.1372/KOL/2024 Sudha Surana; A.Y. 2015-16 8. If the case in hand is analysed on the basis of the aforesaid principle, the mechanical way of recording satisfaction by the Joint Commissioner, which accords sanction for issuing notice under section 148, is clearly unsustainable and we find that on such consideration both the appellate authorities have interfered into the matter. In doing so, no error has been committed warranting reconsideration.\" 19. The SLP challenging the decision rendered by the Madhya Pradesh High Court was dismissed by the Supreme Court [(2015) 64 Taxman.com 313 (SC)]. 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. 21. Hence, for the aforesaid reasons, we are of the view that the approval granted by the PCIT for issuance of notice under Section 148 of the Act is not valid and therefore the impugned notice under Section 148 dated 24.03.2017 cannot be sustained. Accordingly, the impugned notice is set aside. 22. Writ Petition is disposed of in the aforesaid terms.” 012. We therefore respectfully following the decisions of the Hon'ble Delhi High Court, set aside the notice issued u/s 147 of the Act and quash the reopening of assessment u/s 147 read with section 144 of the Act on the ground of non application of mind by the AO to the information received and also invalid approval granted by PCIT. 013. In the result, the appeal of the assessee is allowed. Order pronounced in the open court on 01.04.2025. Sd/- Sd/- (SONJOY SARMA) (RAJESH KUMAR) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) Kolkata, Dated: 01.04.2025 Sudip Sarkar, Sr.PS Page | 12 ITA No.1372/KOL/2024 Sudha Surana; A.Y. 2015-16 Copy of the Order forwarded to : 1. The Appellant 2. The Respondent 3. CIT 4. DR, ITAT, 5. Guard file. BY ORDER, True Copy// Sr. Private Secretary/ Asst. Registrar Income Tax Appellate Tribunal, Kolkata "