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TMI Blog2007 (9) TMI 307X X X X Extracts X X X X X X X X Extracts X X X X ..... the case are that the assessee filed the original return of income on 31st Dec., i992 declaring income at Rs. 3,14,900. The assessee revised the return on 31st March, 1994 and declared loss of Rs. 69,20,248. The AO has declined to accept the revised return and completed the original assessment under s. 143(3) on 13th Feb., 1995 on the basis of the original return on total income of Rs. 38,40,535. Thereafter, the proceedings under s. 147/148 were initiated and notice under s. 148 was served upon the assessee on 28th March, 2001. The assessee objected to initiation of proceedings under s. 147/148 of the Act. The AO did not accept the objections of the assessee and, therefore, concluded that notice under s. 148 which was served on the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on 31st March, 1994 cannot be considered as filed under s. 139(5) because the original return has not been filed as per the provision of s. 139(1). Therefore, the then AO has disallowed bad debts amounting to Rs. 1,19,37,753 claimed in the revised return. However, she has allowed deduction under s. 80HHC at Rs. 11,76,970. In the order under appeal, the AO has withdrawn the deduction under s. 80HHC by taking action under s. 147/148. The appellant has agitated only reopening of assessment and has contended that the notice issued after the period of four year is not in accordance with the provisions of law. The relevant provisions under the Act are envisaged in ss. 149 and 151 which read as under: Under s. 151:-(1) In a case where an ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of the Act. I am of the view that the proceeding initiated in the appellant's case under s. 147 and the notice issued under s. 148 are not legal and also not in accordance with the provisions of law. Since the notice issued under S. 148 is not valid, the consequential proceedings based upon such notice also cannot be termed as valid. Therefore, the reassessment order passed under s. 143(3)/147 is quashed. In the result, the appeal is fully allowed." 5. The learned Departmental Representative relied upon the order of the AO and submitted that the findings of the learned. CIT(A) are not in accordance with law because s. 148 notice could be issued even after four years with the prior approval of the CIT. The learned counsel for the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice under s. 148 it was clearly explained to the assessee that the said notice under s. 148 is issued after obtaining necessary satisfaction of the CIT. The learned Departmental Representative, however, submitted that separate satisfaction of the CIT is not traceable and cannot be filed. The learned Departmental Representative submitted that on the basis of the above documents it is clearly proved that the learned CIT has recorded his satisfaction and given approval to the reopening of the assessment after expiry of 4 years from the end of the relevant assessment year and as such objection of the assessee has no force and is liable to be rejected. The learned Departmental Representative filed list of cases in which the reopening of asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute that the return of income was originally filed on 31st Dec., 1992 on which the assessment was completed under s. 143(3) on 13th Feb., 1995. As per the proviso to s. 151 reproduced above in case of reopening under s. 147 after expiry of four years from the end of the relevant assessment year, no such notice shall be issued unless the Chief CIT or the CIT is satisfied on the reasons recorded by the AO aforesaid that it is a fit case for issue of such notice. It is an admitted fact that the reopening is done in this case by recording reasons after four years from the end of the relevant assessment year. Therefore, the satisfaction of the CIT should have been obtained before issue of notice on the reasons recorded by the AO. The sanction of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich was based on the only question whether there was any satisfaction of the err on the reasons recorded by the AO for reopening of the assessment after four years. The matter is, therefore, arising from the material available on record. Rule 27 of the Tribunal Rules provides that the respondent in an appeal can support the order appealed against on any of the grounds decided against him even though he may not have filed an independent appeal or cross-objection. Therefore, the assessee was justified in raising such a point before the Tribunal which does not involve investigation into fact and that an opportunity is given to both the sides to meet the contentions. Therefore, there is no reason for the Tribunal in accepting the contention of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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