9911796707
TMI Blog2012 (9) TMI 522X X X X Extracts X X X X X X X X Extracts X X X X ..... ch was accepted under section 143(1). The impugned notice dated 28.1.2004 was issued within a period of four years. By a letter dated 16.3.2004, the petitioner requested for the reasons in respect of the impugned notice. On 14.3.2005, the assessment order was passed under section 143(3) read with section 147 by making certain additions and disallowances. The same was done without respondent No.1 having furnished the reasons. 3. For the purpose of this petition, it is not necessary to consider the merits of the assessment order dated 14.3.2005. Nor is it necessary to consider the submission that the assessment order was passed without establishing that any income had escaped assessment. This is for the reason that the writ petition is liabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Income Tax. Below the signature of respondent No.1, an Additional Commissioner of Income Tax, Range-2 (1), Mumbai has signed the following endorsement :- "Put up for approval for issue of notice u/s. 148 of the Income-tax Act, 1961" 7. Mr.Kapoor relied upon section 151, which reads as under :- "151. Sanction for issue of notice.- (1) In a case where an assessment under sub-section (3) of Section 143 or Section 147 has been made for the relevant assessment year, no notice shall be issued under Section 148 by an Assessing Officer, who is below the rank of Assistant Commissioner or Deputy Commissioner, unless the Joint Commissioner is satisfied on the reasons recorded by such Assessing Officer that it is a fit case for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "Put up for approval" for issue of a notice under section 148. There is nothing on record that indicates that the same was actually put up for approval. Nor is there anything to indicate that the approval was in fact granted. 9. Mr.Gupta, the learned counsel appearing on behalf of the respondents submits that it must be presumed from the said endorsement that the approval had been granted. He was however, unable to produce the approval despite our having granted him an opportunity of doing so. The affidavit in reply does not annexe the approval. Despite a further opportunity in Court, the approval was not produced. Mr.Gupta relied upon paragraph 4 of the petitioner's objections contained in the petitioner's letter dated 3.3.2011, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whisper about the Additional Commissioner or the Joint Commissioner having granted the approval. The alleged approval therefore, in any event, is contrary to the provisions of section 151, as held in the judgment of a Division Bench of this Court, to which one of us (M.S. Sanklecha, J.) was a party, dated 12.3.2012 in Shri Ghanshyam K. Khabrani vs. Assistant Commissioner of Income Tax Circle-1, Thane & Others. The Division Bench held as under :- "6 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 a sanction to be taken for the issuance of a notice under Section 148 in certain cases. In the present case, an assessment had n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suance of a notice under Section 148. Section 151(2) mandates 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 of Income Tax is not a Joint Commissioner within the meaning of Section 2(28C). In the present case, the Additional Commissioner of Income Tax forwarded the proposal submitted by the Assessing Officer to the Commissioner of Income Tax. The approval which has been granted is not by the Additional Commissioner of Income Tax but by the Commissioner of Income Tax. There is no statutory provision here under which a power to be exercised by an officer can be exercised by a superior officer. When the statute mandates the satisf ..... X X X X Extracts X X X X X X X X Extracts X X X X
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