TaxTMI 
TaxTMI 
2020 (1) TMI 1673
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....43(3) was bad in law and ab-initio-void and such order cannot be set aside u/s 263 since the reopening of the assessment u/s 147 itself was bad in law." 3. Brief facts of the case pertaining to the ground no. 1 is as follows. The AO in the assessment order notes that the case was reopened u/s 147 of the Act with prior approval from ld. Addl. CIT, Range-3, Kolkata in accordance with provision of Section 151 of the Act. Thereafter he notes that he issued notice u/s 148 of the Act on 30.03.2016 after recording reasons on the note sheet and the notice was duly served upon the assessee and thereafter completed the assessment after transferring it to ITO, Ward-3(1) pursuant to the order passed u/s 120 by Pr. CIT-1, Kolkata and thereafter the re....
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....mmissioner or Principal Commissioner or Commissioner is satisfied, on the reasons recorded by the Assessing Officer, that it is a fit case for the issue of such notice." 4. We note that admittedly, the approval u/s 151(1) of the Act, in the case on hand has been granted by the Additional Commissioner of Income Tax Range - 3 and not by the Commissioner of Income Tax as mandated under the Act. Hence the reopening in question is bad in law as held by the Hon'ble Bombay High Court in the case of Ghanshyamdas Khabrani vs. ACIT 346 ITR 443, wherein it has been held as follows:- "The second ground upon which the reopening is sought to be challenged is that the mandatory requirement of section 151(2) has not been fulfilled. Section 151 requires ....
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....s 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 is not a Joint Commissioner within the meaning of section 2(28C). In the instant case, the Additional Commissioner forwarded the proposal submitted by the Assessing Officer to the Commissioner. The approval which has been granted is not by the Additional Commissioner but by the Commissioner. There is no statutory provision under which a power to be exercised by an officer can be exercised by a superior officer. When the statute mandates the satisfaction of a particular functionary for the exercise of a power, the satisfaction must be of that authority. Where a statute requires so....
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....thority 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. [Para 7] 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 ....
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....iry of four years from the end of relevant assessment year unless the Pr. Chief Commissioner or Chief Commissioner or Pr. Commissioner or Commissioner is satisfied, on the reasons recorded by such AO, that it is a fit case for issue of such notice. So when the statute mandates the satisfaction of a particular functionary/authority for the exercise of a power, the satisfaction must be of that authority. So since the satisfaction/approval is not of any of the authorities given in sub-Section (1) of Section 151 of the Act, the notice issued by AO u/s 148 of the Act is without jurisdiction as a consequence the re-assessment framed by AO dated 05.12.2016 is null in the eyes of law and bad in law. Since the re-assessment order dated 05.12.2016 it....