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2015 (6) TMI 89
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....ence. 2.The assessee has raised three substantive grounds of appeal. With ground No.1 the assessee has challenged jurisdiction of the Officer for re-opening the assessment under section 143(3) r.w.s 147 of the Income Tax Act, 1961 (the Act). Ld. Counsel for the assessee argued at length stating that while re-opening the assessment the Officer has not followed the due process of law and the settled judicial position. Referring to the relevant provisions of the Act, the Ld. Counsel stated that the Officer has not followed the procedure. The approval given by the authority for re-opening the assessment is not as per the provisions of law. 3.Rebutting to these submissions L....
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....nder section 148 of the Act. Section 151 read as under: "151. (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 22[by an Assessing Officer, who is below the rank of Assistant Commissioner 23[or Deputy Commissioner], unless the 24[Joint] Commissioner is satisfied on the reasons recorded by such Assessing Officer that it is a fit case for the issue of such notice] : Provided that, after the expiry of four years from the end of the relevant assessment year, no such notice shall be issued unless the 24a[Principal Chief Commissioner or] Chief Commissioner or 24a[Principal Commissioner or] Commissioner is sat....
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....ar 2004-05. Copy of CIT's approval was also enclosed. Thus, it can be seen that the approval has not been granted by Joint Commissioner as per the mandate of clause -2 of section 151. On the contrary, the approval has been granted by Commissioner under section 151(1) of the Act which is not at all applicable for the case in hand. 4.3 Ld. DR has referred to a letter dated 24/3/2011, which is placed at page 114 of the paper book stating that the Addl. Commissioner has agreed with the views of the AO for re-opening of assessment. It is the say of the Ld. DR that proper sanction has been taken from the Addl. Commissioner/Joint Commissioner as per the provisions of the law. ....
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.... a proposal on 28 March 2011 to the CIT(1) Thane through the Additional Commissioner of Income Tax Range (I) Thane. On 28 March 2011, the Additional CIT forwarded the proposal to the CIT and after recording a gist of the communication of the Assessing Officer stated that "As requested by the A.O. Necessary approval for issue of notice u/s. 148 may kindly be granted in the case, if approved." On this a communication was issued on 29 March 2011 from the office of the CIT (1) conveying approval to the proposal submitted by the Assessing officer. There is merit in the contention raised on behalf of the Assessee that the requirement of Section 151(2) could have only been fulfilled by the satisfaction of the Joint Commissioner that this is ....
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....al issue in favour of the assessee and against the Revenue in the case of S.P.L.Siddhartha Ltd. in ITA No.836 of 2011. This decision has also been considered by the Hon'ble Bombay High Court (supra). Following observations of the Hon'ble Delhi High Court are worth mentioning. "7. Section 116 of the Act also defines the Income Tax Authorities as different and distinct Authorities. Such different and distinct authorities have to exercise their powers in accordance with law as per the powers given to them in specified circumstances. If powers conferred on a particular authority are arrogated by other authority without mandate of law, it will create chaos in the administration of law and hierarchy of administrat....
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.... of the condition precedent." 5. The Apex Court in the case of Anirudh Sinhji Karan Sinhji Jadeja Vs. State of Gujarat, (1995) 5 SCC 302 has held that if a statutory authority has been vested with jurisdiction, he has to exercise it according to its own discretion. If discretion is exercised under the direction or in compliance with some higher authorities instruction, then it will be a case of failure to exercise discretion altogether. 6. We are, therefore, of the opinion that the Tribunal has rightly decided the legal aspect, keeping in view well- established principles of law laid down in catena of judgments including that of the Supreme Court. 7. No question of law arises. This appeal is accordingly dismissed. 4.6 Considerin....