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TaxTMI 
TaxTMI 
TaxTMI 
2017 (9) TMI 121
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....O') under Section 148 of the Income Tax Act, 1961 ('the Act') for the Assessment Year ('AY') 2006-07. It also challenges the order dated 26th December, 2013 passed by the AO rejecting the objection filed by the Assessee to the reopening of the assessment. 2. One of the grounds of challenge to the re-opening of the assessment is that since the return originally filed was processed under Section 143 (1) of the Act, and the reopening was after the expiry of 4 years from the end of the relevant AY, the requirement under Section 151 (2) of the Act, as it then stood, had to be mandatorily complied with. The case of the Petitioner can be better understood by examining Section 151 of the Act as it then stood. It reads thus: "151. Sanction for....
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....er the expiry of 4 years from the end of the relevant AY, and where the return originally filed has been processed under Section 143 (3) of the Act then in terms of the proviso to Section 151(1) of the Act, the approval of the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner has to be obtained to the effect that it is a fit case for issuance of such notice. 4. It is not in dispute that in the present case, the return originally filed by the Assessee for AY 2006-07 was processed under Section 143 (1) of the Act and not under Section 143 (3) of the Act. Therefore, as far as the Petitioner is concerned, the Department ought to have proceeded in terms of Section 151 (2) of the Act. Since the re-opening of the asse....
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....ncome originally assessed : (b) Whether it is a case of under assessment that too low a rate, assessment which has been made the subject to excessive relief or allowing of excessive loss or depreciation : Under assessment 10 Whether the provisions of Sec. 150 (1) are applicable. If the reply is in the affirmative, the relevant facts may be stated against item no.11 and it may also be brought out that the provisions of Sec. 150 (2) would not stand in the way of initiating proceedings u/s. 147 : No 11 Reasons for the believe that the income has escaped assessment : As per Annexure A Dated: 26.03.2013 (Ma....
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....dent from the above note prepared by the AO, he chose to answer the question in Column No. 8 in the negative. This meant that according to the AO, the return filed by the Assessee for AY 2006-07 had in fact been picked up for scrutiny and an assessment order was passed under Section 143 (3) of the Act. However, the factual position was to the contrary. The only conclusion, therefore, to be drawn is that when the AO filled up Column 8 with a negative answer, he did not himself peruse the file as that would have clearly shown him whether the return was subject to scrutiny or not. This was definitely, therefore, an instance of non-application of mind by the AO. 8. If in fact the AO had seen the record, then apart from answering the question....
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....an officer of the rank of the Joint Commissioner to oversee the decision of the AO where the return originally filed was assessed under Section 143 (3) of the Act. Further, where the reopening of an assessment is sought to be made after the expiry of four years from the end of the relevant AY, a further check by the further superior officer is contemplated. 12. In the present case, having started off on a wrong note that the original assessment was scrutinized and an order was passed under Section 143(3) of the Act, the AO proceeded to put up the note to the DIT as is evident from the title of the note but, through the Additional DIT. Both the Additional DIT and the DIT appear to have concurred with the reasons for reopening the assessme....
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....xamine the record themselves. 15. The counter affidavit filed by the Department, in the present case, makes for an interesting read. In para 9, it seeks to explain the lapse as under: "9. That, the contents of Para No. 23, are wrong, prejudiced and out of context, hence, the same are denied in totality as the objections raised by assessee company has been validly and correctly disposed off vide office letter dated 26.12.2013. Furthermore, the case laws cited by the assessee were distinguishable from the facts & circumstances of the case of assessee, and, hence, out of context. In respect of case laws relied for sanction of issuance of notice u/s 148, the same are distinguishable from the present case. From the records available in thi....