IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI “C” BENCH : MUMBAI BEFORE SHRI B.R. BASKARAN, ACCOUNTANT MEMBER AND SHRI ANIKESH BANERJEE, JUDICIAL MEMBER ITA No. 2678/Mum/2024 Assessment Year 2015-16

For Assessee : Shri Ajay Singh a/w.

Shri Akshay Pawar, For Revenue : Shri H.M. Bhatt, Sr.DR Date of Hearing : 01-08-2024 Date of Pronouncement : 07-08-2024

ORDER

PER B.R. BASKARAN, A.M :

The assessee has filed this appeal challenging the order dated

27-03-2024 passed by the learned Commissioner of Income Tax (Appeals)-NFAC, Delhi (in short „Ld.CIT(A)‟) and it relates to AY.

2015-16.

2. The Ld.AR submitted that the Ld.CIT(A) has refused to condone the delay of 198 days and accordingly dismissed the appeal in limine. The Ld.AR submitted that the assessment order was dispatched through e-mode and the assessee was not aware of the same. It was further submitted that the Income Tax matters were looked after by a Sr. Director, Shri Indravadan Purohit. He underwent treatment surgery for Prostate Cancer and on that account also, the assessment order passed by the AO escaped the attention of the assessee. Only when the assessee received penalty notice u/s. 271(1)(c) of the Income Tax Act, 1961 („the Act‟), it came to know about the assessment order passed by the AO, and thereafter it filed appeal before the Ld.CIT(A) with a delay of 198 days. Accordingly, it was submitted that there was a reasonable cause for filing appeal belatedly before the Ld.CIT(A). Accordingly, Ld.AR submitted that Ld.CIT(A) was not justified in refusing to condone the delay.

3. The Ld.AR submitted thatthe impugned assessment is related to re-assessment proceedings initiated for AY. 2015-16. The AO has issued the notice on 29-07-2022, whereas the last date of issuing notice u/s. 148 of the Act for AY. 2015-16 was 31-03-2022. Accordingly, he submitted that re-opening of assessment is bad in law. In this regard, Ld.AR placed reliance on the decision rendered by the Hon‟ble Bombay High Court in the case of Hexaware Technologies Limited., vs. ACIT in Writ Petition No. 1778/2023, dt. 03-05-2024. He submitted that the facts available in the present case and the case before Hon‟ble High Court are identical, i.e., in that case also, theAO had issued notice u/s. 148 of the Act on 27-08-2022 for the AY. 2015-16, which was held to be invalid by Hon‟ble jurisdictional High Court. Accordingly he prayed that the Tribunal may decide this legal issue.

4. On the contrary, Ld.DR, submitted that the AO has issued notice within the extended time limit provided by Taxation and Other Laws (Relaxation and Amendment of certain provisions) Act, 2020 (TOLA) and hence, the same has to be considered as issued within the time period.

5. We heard the parties and perused the record. Since the legal issue urged by the assessee goes to the root of the matter, we admit the same.

6. We notice that the Hon‟ble jurisdictional High Court has examined the validity of the reopening notice dated 27-08-2022 issued for AY 2015-16 u/s 148 of the Act in the case of Hexaware Technologies Ltd (supra). The issues before the Hon‟ble Bombay High Court in the above said case was framed into eight questions. The question no.1 and 2 are relevant in this case and they read as under:-

1. Whether TOLA is applicable for Assessment year 2015-16 and whether any notice issued u/s 148 of the Act after 31st March

2021 will travel back to the original date?

2. Whether the notice dated 27^th August 2022 issued under section 148 of the Act is barred by limitation as per the first proviso to Section 149 of the Act?

6.1. With regard to the first question, the Hon‟ble High Court followed its earlier decisions rendered in the case of Tata Communications Transformation Services Ltd vs. ACIT (2022)(44