TaxTMI 
TaxTMI 
2020 (11) TMI 1008
X X X X Extracts X X X X
X X X X Extracts X X X X
....les of natural & substantial justice for a decision in accordance with law. 1.1. Because the action for concluding the reassessment is being challenged, since the 'approval' has not taken from the designated authority & is in violation of section 151(2) & additionally the sanctioning authority is not having 'charge' over the 'records' while granting the said approval. 1.2. Because the action for initiation, continuation and conclusion of reassessment proceedings is being challenged on facts & law. 1.3. Because the action for initiation of reassessment proceedings is unreasonable since while recording reasons, there is non-application of mind and less independent application of mind & merely relying upon the investigation report by AO, further reasons recorded are vague, lacking tangible material/reasonable cause & justification. 1.4. Because the action is being is challenged on facts & law for challenging that the reassessment order passed u/s 147/143(3) was illegal or nullity in the eyes of law, then, whether the AO had a valid jurisdiction to pass the impugned order u/s 263/147/144 to the non-est reassessment order. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... decided by him on 22/8/2019 dismissing the appeal of the assessee. Therefore assessee is aggrieved with that order has preferred an appeal before us. 7. The learned authorised representative adverting to ground number 1.1 of the appeal stated that while concluding the reassessment, the proper approval u/s 151 (2) has not been taken from proper authority and therefore the original order passed u/s 147 of the act on 31 March 2015 is bad in law. He submitted that though this is the appeal against the order passed by the learned Commissioner of income tax- A in order passed by the learned assessing officer in pursuance of the order u/s 263 of the income tax act wherein it was held that the original order passed u/s 143 (3) read with Section 147 of the act is erroneous and prejudicial to the interest of revenue. He submitted that even in this appeal where the basic foundation of the assessment order which was held to be erroneous and prejudicial to the interest of the revenue by the learned CIT - A can be challenged by assessee at any stage of the assessment/appellant proceedings for that year. For this proposition he submitted that the aforesaid issue is legal in nature as the orig....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... learned assessing officer pursuant to the order of principal Commissioner of income tax u/s 263 of the income tax act wherein it has been held that the order passed by the learned assessing officer on 31st of March 2015 u/s 143 (3) read with Section 147 of the income tax act is erroneous and prejudicial to the interest of revenue, a lot of water has flowed down after that and now assessee cannot say that in the reopening proceedings the proper approval has not been taken. 11. To this assessee submitted that this is not the plea which has been taken before the coordinate bench for the first time but was also taken before the learned CIT - A. He referred to paragraph number 4 of the appellate order wherein this argument is mentioned. He also referred that in additional ground taken before the learned CIT - A at page number 5 of his order is also evident. He further referred to paragraph number 5 at page number 8 of the order of the learned CIT- A wherein it is held that in the case of the appellant the approval of the CIT has been taken instead of Additional Commissioner Of Income Tax, wherein the approval of the Additional Commissioner Of Income Tax is implicit therefore there i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e] : 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 satisfied, on the reasons recorded by the Assessing Officer aforesaid, that it is a fit case for the issue of such notice. (2) In a case other than a case falling under sub-section (1), no notice shall be issued under section 148 by an Assessing Officer, who is below the rank of ^24[Joint] Commissioner, after the expiry of four years from the end of the relevant assessment year, 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.] ^25[Explanation.-For the removal of doubts, it is hereby declared that the Joint Commissioner, the ^25a[Principal Commissioner or] Commissioner or the ^25a[Principal Chief Commissioner or] Chief Commissioner, as the case may be, being satisfied on the reasons recorded by the Assessing Officer about fitness of a case for the issue of notice under section 148, need not issue such notice him....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nature on the file is that of the DIT who states in a single word "approved". 6. From the above noting on the file it is seen that the Addl. DIT merely "put up for approval" the file and did not himself accord approval of the Assessing Officer's proposal for reopening the assessment for the assessment year 2005-06. 7. It is contended by Mr. Rahul Chaudhary, learned senior standing counsel for the Department, that when the Addl. DIT recorded the words "put up for approval" he, in fact, should be understood to have applied his mind, approved the note of the Assessing Officer, and only thereafter put up the note for further approval to the DIT. He further sought to explain that it is only because the original records were not traceable that this course was adopted by the Addl. DIT. 8. The above submission cannot be accepted. Where the original assessment is processed under section 143(1) of the Act, and the reopening is sought to be done after the expiry of four years from the end of the relevant assessment year, the mandatory requirement under section 151(2) of the Act is that the approval for the reopening of the assessment should be by an officer of t....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of the statute which unambiguously states that the competent authority in such cases is the Joint Commissioner (and not the Chief Commissioner or the Principal Commissioner). The Revenue's submissions that all such cases, are covered under proviso to section 147(1), the competent authority for prior approval would be four superior officers, renders section 151(2) superfluous. If anything the court is clear that it is not its job to render, in the process of interpretation, an entire provision academic or inoperative. This court is of the opinion that accepting the Revenue's position would result in that consequence. The court also invokes the principle enunciated by the Privy Council in Nazir Ahmad v. Emperor, AIR 1936 PC 253 : that if the statute mandates that something be done in a particular manner, should be in that manner or not at all. In this case, since the original assessment was completed 'other than' the eventualities contemplated in section 151(1), i.e., it was processed under section 143(1). Thus, clearly section 151(2) applied." 11. In view of the clear position in law, the court has no hesitation in concluding that in the present case, the m....