Jiwansagar Niketan Private Limited Vs ACIT (ITAT Kolkata)
Reopening Invalid – Notice u/s 148 Issued Before Communication of Sec 151 Approval – Jurisdictional Defect Fatal – ITAT Kolkata
ITAT Kolkata quashed reassessment holding that notice u/s 148 issued on 29.03.2017 was invalid since mandatory approval u/s 151 was communicated to AO only on 30.03.2017, i.e., after issuance of notice. Tribunal noted from approval sheet (page 4) that PCIT’s sanction lacked proper dating and from departmental letter (page 5) that approval reached AO later, proving notice was issued without effective sanction. Relying on coordinate bench ruling in Paras Plaza Pvt. Ltd. and SC principles that administrative approval becomes effective only upon communication, ITAT held reopening void ab initio and annulled assessment framed u/s 143(3) r.w.s.147 without examining merits. Appeal allowed in favour of assessee.
FULL TEXT OF THE ORDER OF ITAT KOLKATA
The present appeal filed by the assessee arises from order dated 28.08.2025 passed u/s 250 of the Income Tax Act, 1961 (hereafter referred to “the Act”) by the Ld. Commissioner of Income Tax (Appeals), Kolkata-21 [hereafter referred to “the Ld. CIT(A)].
2. At the outset, the Ld. Counsel of the assessee pointed out that the assessee has filed additional ground vide letter dated 27.01.2026 challenging the validity of notice issued u/s 148 of the Act dated 29.03.2017. For the sake of ready reference, the additional ground raised by the assessee is extracted below:
“That the impugned reassessment order dated 29.12.2017 passed u/s. 143(3) read with section 147 of the act that in the case of the assessee for the reassessment year 2010-11 is without jurisdiction, illegal, invalid and bad in law. The reassessment proceedings were wrongly initiated vide notice dated 29.03.2017 u/s. 148 even prior to the receipt of the proforma form on 30.03.2017 containing the mandatory approval of the sanctioning authority i.e. the Principal Commissioner of Income tax Central 2 Kolkata as required to be obtained u/s. 151 of the act.”
3. After hearing the rival contentions and perusing the material on record, we find that the assessee has raised an additional ground of appeal challenging the jurisdiction of the AO to make the addition. In our opinion the issued raised in the additional ground is a purely a legal issue qua which all the facts are available in the appeal folder and no further verification of facts is required from any quarter whatsoever. In our considered view the assessee is at liberty to raise any legal issue before any appellate authority for the first time even when the same has not been raised before the lower authorities. The case of the assessee is squarely covered by the decisions of the Apex court in the case of i) Jute Corporation of India Ltd. Vs CIT in 187 ITR 688, ii) National Thermal Power Co. Ltd v. CIT [1998] 229 ITR 383 and also by the decision of Hon’ble Calcutta High Court in PCIT vs. Britannia Industries Ltd. [2017] 396 ITR 677 (Cal). Therefore, we are inclined to admit the same for adjudication.
