TaxTMI 
TaxTMI 
2013 (10) TMI 1417
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....addition. He submitted that the issue regarding validity of reassessment has been decided by Ld. CIT(A) against the assessee and on merits he has granted relief to the assessee. The assessee did not prefer either cross appeal or cross objection. However, taking resort to Rule 27 the assessee want to support the order of Ld. CIT(A) granting relief to the assessee to contend that Ld. CIT(A) has wrongly upheld the validity of reassessment proceedings. He submitted that such course of action can be adopted by the assessee and such position of law is well settled and accepted by the Mumbai Tribunal vide its order dated 29/12/2005 in ITA No.3257/Mum/2002 in the case of ITO vs. M.L. Industries. He has submitted a copy of the said decision before us and a copy was also given to Ld. DR. 3. Reading from the aforementioned order of the Tribunal in the case of ITO vs. M.L. Industries(supra) it was submitted by Ld. AR that in that case also the issue on merits regarding addition of Rs. 9,43,618/- was decided by Ld. CIT(A) in favour of assessee and issue regarding validity of reassessment proceedings was decided against the assessee and it was the contention of the assessee before the Tribunal ....
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....ts case and defending the order of the CIT(A). Therefore, we have to examine whether the assessing officer was justified in law in reopening the assessment u/s 147." 4. We have heard both the parties. Ld. DR after going through the aforementioned decision and Rule 27 did not object to such request of Ld. AR that the issue regarding validity or otherwise of reassessment proceedings can be taken by the assessee during the course of this hearing. Therefore, we admit such claim of the assessee and proceed first to decide this issue as the same touches to the jurisdiction of AO to assess the assessee by way of re-assessment. If it is held that reassessment proceedings were not validly carried out then we may not be required to go into the merits of the case. 5. Arguing the contention of the assessee regarding invalidity of reassessment proceedings Ld. AR submitted that re-assessment proceedings are invalid on the ground that these proceedings have been initiated on obtaining approval from Commissioner of Income Tax on 31/3/2009. According to Ld. AR as per provisions of section 151 of the Income Tax Act, 1961 (the Act), if the assessment which is not earlier framed under section 143(3....
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....section 147. The impugned assessment year is A.Y 2002-03. Four years from the end of the relevant assessment year will expire on 31/3/2007. He has also submitted before us copy of the letter dated 30/3/2009 issued by Commissioner of Income Tax-25, Mumbai granting approval to the Additional Commissioner of Income Tax, Range 25(3) for the issue of notice under section 148, the contents of such letter are as under: "Office of the Commissioner of lncorne-tax-25, C-II, 2 Floor, Pratyaksha Kar Bhawan, Bandra Kurla Complex, Bandra (East), Mumbai 400 051. No.CIT-25/Approvat u/s. 151/ 2008-09 Date: 31/03/2009 The Addl. Commissioner of Income-tax, Range 25(3), Mumbai. Sub : Reopening of assessment U/s 147 of the I. T. Act. 1961 in the case of Shri Rupkumar Batchand Rohra for the A.Y. 2002-03 PAN : AFPPR5573H - reg. Please refer to the above. The approval u/s. 151(1) of the Income Tax Act, 1961 for issue of notice u/s 148 of the I. T. Act, 1961 is hereby granted in the case of Shri Rupkumar Balchand Rohra for the A.Y. 2002-03 for the reasons reported by the .T.O. 25(3)(3, Mumbai in his proposal dated 31/03/2009. Sd/- (DILIP KUMAR) Commi....
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.... a gist of the communication of the Assessing Officer stated that : "As requested by the Assessing Officer, necessary approval for issue of notice under section 148 may kindly be granted in the case, if approved." On this a communication was issued on March 29, 2011, from the office of the Commissioner of Income-tax (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 a fit case for the issuance of a notice under section 148. Section 151(2) mandates that the satisfaction has to be of the Joint Commissioner. That expression has a distinct meaning by virtue of the definition in section 2(28C). The Commissioner of Income-tax is not a Joint Commissioner within the meaning of section 2(28C). In the present case, the Additional Commissioner of Income-tax forwarded the proposal submitted by the Assessing Officer to the Commissioner of Income-tax. The approval which has been granted is not by the Additional Commissioner of Income-tax but by the Commissioner of Income-tax. ....