2017 (11) TMI 961 - AT - Income Tax

Validity of reopening of assessment under section 148 - permission from non competent authority - whether notice issued under section 148 and reasons recorded by the AO for reopening of the assessment are not valid as the necessary approval was not obtained from the chief commissioner or Commissioner but the approval was obtained from Joint commissioner? - Held that - There is no quarrel on the point that in case of reopening of assessment under section 148 after expiry of 4 years from the relevant assessment year the approval of reasons recorded by AO is required to be granted by the Commissioner or chief Commissioner as case may be as per the provisions of section 151(1) of the Income Tax Act as exist at the relevant point of time. In the case of the assessee here is no dispute about the fact that the notice under section 148 issued on 20th March 2013 was after the expiry of 4 years from the assessment year under consideration and the original assessment was also frame under section 143(3) of the Act. Therefore, on principle we find merits in the contention of the assessee however, neither this issue was raised before the authorities below nor it was adjudicated. We find that though the assessee raised an objection againstthe notice issued under section 148 of the Act and consequential reassessment completed under section 147 read with section 143(3) of the Act however, it was based on entirely a different plea and ground that the assessing officer was having no reason to believe that the income accessible to tax add escaped assessment. We further note that even no such arguments and contentions was raised by the assessee as apparent from the impugned order of CIT(appeals). There it is Apparent that assessee did not raised this particular contention and plea of invalidity of the notice issued under section 148 for want of the approval of the competent Authority under section 151(1) of the Act. Since this issue has been raised by the assessee first time before the Tribunal and goes to the root of the matter but subject to the verification of the fact that the approval was obtained from joint commissioner and not from the chief commissioner or Commissioner as provided under section 151(1) of the Act. Accordingly, in the facts and circumstances of the case and in the interest of Justice we set aside this issue to the record of the CIT(appeals) for consideration and adjudication of this ground of the assessee. - Appeal of the assessee is allowed for statistical purpose.

Summary

Issues Involved:
1. Validity of reopening of assessment under section 148 of the Income Tax Act.
2. Approval requirement for reopening assessment after 4 years.
3. Competency of the authority granting approval for reopening assessment.
4. Consequences of lack of approval from competent authority on the validity of notice under section 148 and reassessment proceedings.

Issue 1: Validity of Reopening of Assessment under Section 148:
The appellant challenged the validity of the assessment reopening, arguing that the notice issued under section 148 and the reasons recorded by the Assessing Officer (AO) were invalid due to the absence of necessary approval from the Chief Commissioner or Commissioner. The appellant contended that the approval granted by the Joint Commissioner did not meet the statutory requirement under section 151(1) of the Income Tax Act. The Tribunal acknowledged that for reopening assessments after 4 years, approval from the Commissioner or Chief Commissioner is mandatory. The Tribunal held that the notice issued under section 148 without the approval of the competent authority is invalid, rendering the subsequent proceedings under sections 147 and 143 void for lack of jurisdiction and being unsustainable in law.

Issue 2: Approval Requirement for Reopening Assessment after 4 Years:
The appellant argued that since the original assessment was completed under section 143(3) and the reassessment was initiated after more than 4 years, approval from the Commissioner or Chief Commissioner was necessary before issuing the notice under section 148. The Tribunal agreed with this contention, emphasizing that the approval of reasons recorded by the AO after 4 years from the relevant assessment year must be granted by the Commissioner or Chief Commissioner, as per the provisions of section 151(1) of the Income Tax Act. The Tribunal ruled that the notice issued under section 148 without the required approval is invalid and the subsequent reassessment proceedings are void ab-initio.

Issue 3: Competency of the Authority Granting Approval for Reopening Assessment:
The appellant highlighted that the approval for reopening the assessment was granted by the Joint Commissioner, not by the competent authority as mandated by law. The Tribunal reiterated that the approval of the reasons recorded by the AO after 4 years must be granted by the Commissioner or Chief Commissioner, and not by a Joint Commissioner. The Tribunal emphasized that without the approval of the competent authority, the AO lacks the power to issue a notice under section 148, rendering such notice invalid and the consequent proceedings unsustainable in law.

Issue 4: Consequences of Lack of Approval from Competent Authority:
The Tribunal noted that the appellant did not raise the specific contention of the notice's invalidity due to lack of approval before the lower authorities. However, considering the critical nature of this issue and the fact that it was raised for the first time before the Tribunal, the Tribunal set aside this issue for the lower authorities to consider and adjudicate. Due to the pivotal nature of this legal issue, the Tribunal refrained from delving into the merits of the addition challenged in the appeal, leaving it open for future consideration. Ultimately, the Tribunal allowed the appeal for statistical purposes.

This detailed analysis of the judgment addresses the key legal issues involved in the case, focusing on the validity of the assessment reopening, the approval requirements, the competency of the authority granting approval, and the consequences of lacking approval from the competent authority on the validity of the notice and reassessment proceedings.