TaxTMI 
TaxTMI 
2017 (5) TMI 416
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....atory conditions of section 147 to 153 of the Income Tax Act, 1961 and reopening of the case is bad in law and beyond the jurisdiction of the ld. Assessing Officer. 3. That having regard to the facts and circumstance of the case, Ld. CIT(A) has erred in law and on facts in confirming the action of ld. Assessing Officer in framing the impugned assessment being beyond jurisdiction, bad in law, illegal, unjustified, against the principles of natural justice and void ab initio." 3. I have heard the rival contentions and perused the facts of the case. The issue at the outset is of two folds, firstly whether the assumption of jurisdiction by the Assessing Officer was legal in reopening assessment u/s.147 of the Act or not. In this regard, learned counsel for the assessee, DR. Rakesh Gupta, Advocate invited my attention at page 12 of the Assessing Officer's order, paragraph 5.1 of the order, which is reproduced for the sake of convenience as under: "5.1 Regarding reopening of the case: The notice u/s 148 was issued after taking approval of Additional CIT and was duly served upon assessee on 30.03.2007. The reasons were based on the material collected by AO in course of reassessment....
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...., ACIT, DCIT to reopen the assessment within four year u/s.151(2) mandatorily did not have any approval from their superior authority. The reliance was placed on the decision in the case of S. Sewa Singh Gill vs. CIT (1962) 46 ITR 0152 High Court of Punjab at Delhi placed at paper book page 247 to 250 where it has been held that competency of ITO cannot be doubted and challenged as the assessment drafted by the ITO is final assessment and the CIT(A) making the approval regarding assessment is not valid. The facts of the case and the decision's relevant part are reproduced below: "Reference correspondence resting with the I. T. O's letter No. 1335, dated the 23rd of March, 1954. Will the I. T. O. please report immediately whether the pending assessment for the year 1945-46 in the above case has already been completed? If not, he should complete the same without further delay under intimation to this office. The draft assessment order may. however, be got approved by the I. A. C. before finalising the said assessment." This was followed by a further letter dated the 26th of May, 1954, from the Inspecting Assistant Commissioner to the Income-tax Officer which reads - "The dra....
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....certain matter the matter must be decided according to the judgment of that officer and not under the directions of a superior. In the present case the question of the submission of the assessment order of the Incometax Officer for the approval of the Inspecting Assistant Commissioner appears to have only crept in at a late stage. In fact it does not seem to have been contemplated until about three months after the petitioner had appeared before the Income-tax officer and, because of complaints from the petitioner regarding the delay, the Commissioner thought fit by his letter of the 8th of May, 1954, to direct the obtaining of the approval of the Inspecting Assistant Commissioner before the award was finalised. In my opinion this direction must be held to be illegal and unwarranted....... 12. Technically this argument appears to me to be correct, but the case appears to depend mainly on the fact that quite evidently the order of assessment in this case is the best judgment of the Income-tax Officer on the matters before him and that this was intended to be his final decision in the matter unless he was ordered to revise it by, the Inspecting Assistant Commissioner and in my opin....
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....ied 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 administration will mean nothing. Satisfaction of one authority cannot be substituted by the satisfaction of the other authority. It is trite that when a statute requires, a thing to be done in a certain manner, it shall be done in that manner alone and the Court would not expect its being done in some other manner. It was so held in the following decisions: (i) CIT Vs. Naveen Khanna (dated 18.11.2009 in ITA No.21/2009 (DHC). (ii) State of Bihar Vs. J.A.C. Saldanna & Ors. AIR (1980) SC 326. (iii) State of Gujarat Vs. Shantilal Mangaldas, AIR (1969) SCN 634. 8. Thus, if authority is given expressly by affirmative words upon a defined condition, the expression of that condition excludes the doing of the Act authorised under other circumstances than those as defined. It is also established principle of law that if a particular authority has been designated to record his/her satisfaction on any particular issue, then it is that authority alone who should apply his/her independent mind to reco....
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....pleted the assessment on the very same day i.e. 31.12.2007. Fromthe perusal of the assessment order, its is, thus clear that the assessment has been completed within. three days after the receiving the assessee's reply on 27.12.2007. The assessee's objections to the reasons recorded has not been considered and decided by the AO before he makes the .assessment u/s. 147 of the Act. We, therefore, find that the spirit of the judgment of Hon'ble Supreme Court in the case of GKW Driveshaft Limited reported in 251 ITR, 19 (SC) has not been compiled with. At this stage, the ld. counsel for the assessee has submitted that this irregularity can be cured if the matter is restore back to the file of the AO, directing him to deal with the objections raised by the assessee before passing the assessment order on merit. In this connection, ld. counsel. 9. In the result, both the appeals filed by the assessee as well as by the revenue are allowed for statistical purpose. 7.1 From the said order of the ITAT, it is evident that objections of the reasons recorded was not considered and decided by the AO. The AO makes the assessment u/s.147 of the Act. Learned counsel for the assessee ....