TaxTMI 
TaxTMI 
2012 (8) TMI 39
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....ed u/s 147 by issuing notice u/s 148 of the Act requiring the assessee to file return of income for the year under consideration. For reopening the A.O. took the statutory approval from the CIT. The assessee vide its letter dated 06.01.2004 submitted that the return of income filed for the year under consideration on 30.10.1996 may be considered as return filed in response to notice u/s 148 of the Act. The assessment u/s 143(3) read with Section 147 of the Act was finalized by the A.O. on 27.02.2004 determining the assessee's total income at Rs.2,86,05,160/-. While finalizing the assessment the A.O. made certain additions to the income previously assessed by him. 4. Aggrieved by this order of the A.O. assessee went in appeal before ld. CIT(A). Besides challenging the addition made by the A.O. the assessee also challenged the reopening of the assessment u/s 147 of the Act. However, ld. CIT(A) confirmed the action of the A.O. in reopening of the assessment u/s 147 of the Act by the A.O. Further aggrieved, now the assessee is in appeal before us. 5. At the time of hearing ld. counsel of the assessee placing reliance on the decisions of Hon'ble Delhi High Court in the case of ....
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..... As against this 'sanction' requires an independent perusal facts and record and also the recital of the reasons for granting approval. A bare perusal of the forwarding letter of the Addl. CIT shows that while forwarding the Performa to the CIT he was definitely free of anxiety, doubt, perplexity, suspense or uncertainty and hence the statutory requirement of the Addl. CIT being 'satisfied' with the reasons recorded stood fulfilled at the very instance of forwarding of the Performa to the CIT. This being so the assumption of jurisdiction under section 147 cannot be held to be vitiated even if additional endorsement has also been obtained from the CIT. C) Third argument: a. The Hon'ble DHC in the case before it has held that the Addl CIT did not apply his mind. With regard to this finding the order of the Hon'ble DHC is 'per incuriam' is it has failed to take cognizance of the Full Bench decision of the DHC in the case of CIT vs. Kelvinator of India Ltd. 123 Taxmann 433 (FB) wherein on the basis of the statutory presumption under section 114(e) of the Indian Evidence Act, 1872 the Hon'ble Court had drawn a presumption in Income Tax matter that all official acts have bee....
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.... ignored while deciding the issue in hand which is squarely covered in favour of the assessee by the decision of Ghanshyam K. Khabrani (supra). 8. After hearing both the parties and perusing the record we find that in this case return of income declaring total income of Rs.73,97,050/- was filed on 30.10.1996. The same was processed u/s 143(1) of the Act on 22.02.1999. Thereafter order u/s 154 dated 30.03.2000 was passed and revised total income of the assessee, after this rectification order, was Rs.64,51,555/-. The reasons for reopening assessment were recorded on 10.02.2003. Since more than four years form the end of the assessment year had lapsed, as per proviso u/s 151(1), statutory approval of Joint Commissioner was required. For the sake of convenience the provisions of Section 151 are reproduced below:- "(1) In a case where an assessment under sub-section (3) of section 143 or section 147 has been made for the relevant assessment year, no notice shall be issued under section 148 [by an Assessing Officer, who is below the rank of Assistant Commissioner [or Deputy Commissioner], unless the [Joint] Commissioner is satisfied on the reasons recorded by such Assessing Office....
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....al of the A.O. dated 10.02.2003. Thus there is no dispute about the fact that the requirement of Section 2 of Section 151 has not been fulfilled in this case as the satisfaction of Joint Commissioner of Income Tax was required to the effect that it was a fit case for the issuance of a notice u/s 148. In the present case the Additional Commissioner of Income Tax forwarded the proposal submitted by the Assessing Officer to the Commissioner of Income Tax. Approval, which has been granted, is not by the Additional Commission of Income Tax but by the Commissioner of Income Tax. The Commissioner of Income Tax is not a Joint Commissioner or Addl. Commissioner within the meaning of Section 2 (28C). Since, the mandatory requirement of Section 147 and 151(2) of the Act has not been complied with before issuance of notice u/s 148 of the Act in this case, the notice so issued was not valid. 11. On identical facts, Hon'ble Bombay High Court in the case of Shri Ghanshyam K. Khabrani (supra) has held as under:- "The second ground upon which the reopening is sought to be challenged is that the mandatory requirement of Section 151(2) has not been fulfilled. Section 151 requires a sa....