TaxTMI 
TaxTMI 
2007 (9) TMI 307
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....s. 38,40,535. Thereafter, the proceedings under s. 147/148 were initiated and notice under s. 148 was served upon the assessee on 28th March, 2001. The assessee objected to initiation of proceedings under s. 147/148 of the Act. The AO did not accept the objections of the assessee and, therefore, concluded that notice under s. 148 which was served on the assessee was a valid notice for reopening of the assessment as there exists a case of escapement of income in terms of s. 147 of the Act. 4. The assessee challenged the reopening of the assessment before the learned CIT(A) and it was submitted that the notice under s. 148 cannot be issued after expiry of four years from the end of the relevant assessment year i.e., 1992-93 if the original assessment order is made under s. 143(3) unless the income has escaped the assessment for the reason of failure on the part of the assessee to make return under s. 139 or in response to notice issued under s. 142(1) or s. 148 or to disclose fully or truly all material facts necessary for assessment for that assessment year. It was explained that the assessee filed the return of income and disclosed all material facts upon which the regular asses....
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....essment. has not stated any reason and the basic requirements and legality for issuing the notice under s. 148 after four years from the end of the relevant assessment year when the original assessment has been made. The AO has made reference of the amended position of s. 147 of the IT Act and concluded that the notice issued under s. 148 is a valid notice and reopening of the proceeding for the asst. yr. 1992-93 is legal. After considering the facts of the case, submissions of the appellant and the relevant provisions of the Act. I am of the view that the proceeding initiated in the appellant's case under s. 147 and the notice issued under s. 148 are not legal and also not in accordance with the provisions of law. Since the notice issued under S. 148 is not valid, the consequential proceedings based upon such notice also cannot be termed as valid. Therefore, the reassessment order passed under s. 143(3)/147 is quashed. In the result, the appeal is fully allowed." 5. The learned Departmental Representative relied upon the order of the AO and submitted that the findings of the learned. CIT(A) are not in accordance with law because s. 148 notice could be issued even after....
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.... hand, the learned counsel for the assessee reiterated the submissions made before the authorities below and submitted that since the Department has failed to produce the said register of the CIT giving approval to the reopening of the assessment after 4 years, the above documents would not prove anything in favour of the Department and would only raise a presumption that the CIT might have issued sanction and approval of the reopening of the assessment. He has, however, submitted that the satisfaction of the CIT in giving approval to the reassessment is not a mere formality and the Department should also prove that the learned CIT applied his mind to the facts and circumstances of the case before giving approval. He submitted that the sanction of the learned CIT is a must for reopening of the assessment after four years. In support of his contention he has relied upon the following decisions: (1) Decision of the Hon'ble Allahabad High Court in the case of Dr. Shashi Kant Garg vs. CIT (2006) 203 CTR (All) 75 : (2006) 285 ITR 158 (All); (2) Decision of the Hon'ble Calcutta High Court in the case of East India Hotels Ltd. vs. Dy. CIT (1993) 204 ITR 435 (Cal); (3) Decision of....
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....unal for the first time as a respondent defending the order of the learned CIT(A) which was based on the only question whether there was any satisfaction of the err on the reasons recorded by the AO for reopening of the assessment after four years. The matter is, therefore, arising from the material available on record. Rule 27 of the Tribunal Rules provides that the respondent in an appeal can support the order appealed against on any of the grounds decided against him even though he may not have filed an independent appeal or cross-objection. Therefore, the assessee was justified in raising such a point before the Tribunal which does not involve investigation into fact and that an opportunity is given to both the sides to meet the contentions. Therefore, there is no reason for the Tribunal in accepting the contention of the learned Departmental Representative. The same view is taken by the Tribunal, Delhi Bench, in the case of ITO vs. Smt. Gurinder Kaur (2006) 105 TTJ (Del) 198 : (2007) 288 ITR 207 (Del)(AT). 9. The material on record produced by the learned Departmental Representative before the Tribunal shows that the AO recorded the reasons for reopening after four years fr....