2008 (4) TMI 725

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....bjection read as under : 1. That having regard to the facts and circumstances of the case, learned CIT(A) has erred in law and on facts in not quashing the assessment order passed under s. 143(3)/148 also on the grounds : (a) that reopening of the assessment was void for the reason that approval was given under s. 151 by learned CIT, whereas as per law the satisfaction of Jt. CIT was required, in terms of provisions of s. 151(2) as original assessment was made under s. 143(1). (b) that in the assessment framed under s. 143(3) r/w s. 147, the primary onus to show that the impugned amount was income of the assessee was not discharged by learned AO and accordingly action of learned AO was contrary to law and facts in shifting his entire ....

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....t was contended that since the section requires satisfaction of Jt. CIT specifically, it cannot be substituted by any other officer even if he is senior to Jt. CIT. It was submitted that under similar facts, similar issue was decided by the Tribunal in favour of the assessee in the case of Shanti Vijay & Co. vs. ITO (1998) 60 TTJ (Del) 748. It was also submitted that similar issue was decided in favour of the assessee in the case of R.P. Gupta & Sons also as per ITA No. 5371/Del/2004, dt. 23rd Sept., 2005 and copy of this Tribunal judgment was submitted. Our attention was drawn to para Nos. 25 to 29 of the Tribunal judgment, it was also submitted that in the case of ITO vs. Rajesh Garg also, similar issue was decided in favour of the assess....

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....sentative of the Revenue supported the orders of the authorities below. 6. We have heard the rival submissions and perused the material available on record and have gone through the judgments cited by the learned Authorised Representative of the assessee. We find that in the present case, it is admitted position that the AO in the present case is below the rank of Jt. CIT because the AO in the present case is ITO. It is also admitted position that the original assessment was completed under s. 143(1) and hence for issuance of notice under s. 148, the provisions of s. 151(2) are to be complied with. It is also admitted position that in the present case, the AO has obtained the satisfaction of the CIT and not of Jt. CIT. Under this factual....

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....IT, the notice issued by the AO under s. 148 is bad in law. Ground No.1(a) of the assessee's cross-objection stands allowed. 7. Once it is held by us that notice under s. 148 issued by the AO is bad in law, the assessment framed by the AO in pursuance to such notice stands vacated and hence remaining grounds raised by the assessee become academic in nature. However, we find that on this aspect also, the assessee deserves to succeed. A clear finding is given by learned CIT(A) on page No. 5 of his order that the assessee was not provided with a copy of statement of Shri Satish Goel, Prop., of M/s R.K. Aggarwal & Co. nor a copy of material gathered by Dy. Director IT (Inv.), Gurgaon was provided to the assessee although both these were used....