2004 (8) TMI 88 - HC - Income Tax

Notice under section 148 limitation approval - Since in the present case there is neither any assessment order under sub-section (3) of section 143 or section 147 of the Act the proviso to sub-section (1) of section 151 would not be applicable and the case shall be covered by sub-section (2) which requires the satisfaction/approval of the Joint Commissioner. - It may be mentioned here that section 2(28C) provides that Joint Commissioner means a person appointed to be a Joint Commissioner of Income-tax or an Additional Commissioner of Income-tax under sub-section (1) of section 117 of the Act. The Additional Commissioner would thus be a Joint Commissioner within the meaning of the word Joint Commissioner under sub-section (2) of section 151 of the Act. There is an order of the Additional Commissioner recording his satisfaction and granting approval to the issuance of the notice. notice is valid - notice cannot be quashed

Summary

Issues:
1. Validity of notice under section 148 of the Income-tax Act for assessment years 1995-96 and 1996-97.
2. Requirement of approval for issuance of notice under section 147 of the Act.

Analysis:
1. The petitioner, an individual, challenged the notice under section 148 of the Income-tax Act for the assessment years 1995-96 and 1996-97. The petitioner claimed that the notice for 1995-96 was issued after the six-year period, but the court held that the notice only needs to be issued within the limitation period. Citing previous judgments, the court clarified that the requirement is met as long as the notice is issued within the specified time frame. Therefore, the argument raised by the petitioner was deemed misconceived and rejected.

2. The petitioner also argued that for initiating proceedings under section 147, the approval for notice issuance should have been granted by the Commissioner or Chief Commissioner, not the Additional Commissioner as in this case. However, the court explained that in this instance, the previous proceedings were dropped due to jurisdictional issues, and since there was no assessment order under the relevant sections, the proviso requiring approval from the Commissioner or Chief Commissioner did not apply. Instead, the case fell under sub-section (2) of section 151, which necessitates satisfaction/approval from the Joint Commissioner. The Additional Commissioner, being a Joint Commissioner as per the Act, provided the necessary approval for the notice issuance.

In conclusion, the High Court found no merit in the writ petition and dismissed it in limine, upholding the validity of the notice under section 148 for the assessment years in question and affirming the approval granted by the Additional Commissioner for the notice under section 147.