1. ITO Versus Shri Rupkumar Balchand Rohra, I .T.A. No.4999/MUM/2010, Date of Order 10/10/2013, ITAT – Mumbai.
Issuance of notice u/s 148 after approval from Commissioner of Income
Tax instead of Joint Commissioner of Income Tax which is authorized to
grant approval under the provisions of section 151 held to be
non-sustainable in law.
Held Yes
There remains no dispute on the fact that re-assessment proceedings
have been initiated on the approval received by the AO from Commissioner
of Income Tax and the said approval was not given of Additional
Commissioner / Joint Commissioner of Income Tax. There is also no
dispute that the approval has been issued after a period of four years
from the end of the relevant assessment year. If these facts are
undisputed, then in accordance with aforementioned decision of Hon’ble
Jurisdictional High Court it has to be held that the reassessment
proceedings based on an approval granted by Commissioner of Income Tax
instead of Additional Commissioner / Joint Commissioner of Income Tax
are required to be held to be invalid.
2. Shri Amarlal Bajaj versus ACIT, ITA No. 611/Mum/2004, Date of Order : 24.07.2013, ITAT-Mumbai
Merely writing “approved” in the sanction form without recording satisfaction renders the reopening of assessment void u/s 148
S. 147
and 148 are a charter to the Revenue to reopen earlier assessments. They
are sword for the Revenue and shield for the assessee. S. 151 guards
that the sword of S. 147 may not be used unless a superior officer is
satisfied that the AO has good and adequate reasons to invoke the
provisions of S. 147. The superior authority has to examine the reasons,
material or grounds and to judge whether they are sufficient and
adequate to the formation of the necessary belief on the part of the
assessing officer. If, after applying his mind and also recording his
reasons, howsoever briefly, the Commissioner is of the opinion that the
AO’s belief is well reasoned and bona fide, he is to accord his sanction
to the issue of notice u/s 148 of the Act. In the instant case, we find
from the perusal of the order sheet which is on record, the
Commissioner has simply put “approved” and signed the report thereby
giving sanction to the AO. Nowhere the Commissioner has recorded a
satisfaction note not even in brief. Therefore, it cannot be said that
the Commissioner has accorded sanction after applying his mind and after
recording his satisfaction
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