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TMI Blog2015 (6) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... ur of assesse. - I.T.A. No. 250/Mum/2014, I.T.A. No. 1760/Mum/2014 - - - Dated:- 25-3-2015 - Shri N.K. Billaiya And Shri Amit Shukla JJ. For the Appellant : Shri Rajiv Khandelwal For the Respondent : Shri Sacchidanand Shri Kishan Vyas ORDER, Per N.K.Billaiya, JM: These are cross appeals by the assessee and the Revenue against the very same order of the Ld. CIT(A)-38, Mumbai dated 20/12/2013 pertaining to assessment year 2004-05. Both these appeals were heard together and they are disposed of by this common order for the sake of convenience. 2.The assessee has raised three substantive grounds of appeal. With ground No.1 the assessee has challenged jurisdiction of the Officer for re-opening the assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated as return of income filed in response to notice issued under section 148 of the Act. The assessee has challenged the issuance and validity of this notice under section 148 of the Act claiming that it has been issued in violation of the relevant provisions of the Act without proper approval from the appropriate authority. 4.2 Section 151 of the Act is relevant provision for the sanction for issue of notice under section 148 of the Act. Section 151 read as under: 151. (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 22[by an Assessing Officer, who is below the rank of Assistant Commissioner 23[or D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase in hand, as per the copy of the approval placed at page 115 of the paper book, which is a letter by the Dy.CIT (HQ) to the Addl.CIT (Central), Range 10. With this letter it has been stated that the CIT (Central)-IV, Mumbai had accorded his approval under section 151(1) of the Act for issue of notice under section 148 of the Act in the case of Aquatic Remedies P. Ltd. for assessment year 2004-05. Copy of CIT s approval was also enclosed. Thus, it can be seen that the approval has not been granted by Joint Commissioner as per the mandate of clause -2 of section 151. On the contrary, the approval has been granted by Commissioner under section 151(1) of the Act which is not at all applicable for the case in hand. 4.3 Ld. DR has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f such notice. The expression Joint Commissioner is defined in Section 2(28C) to mean a person appointed to be a Joint Commissioner of Income Tax or an Additional Commissioner of Income Tax under Section 117(1). In the present case, the record before the Court indicate that the Assessing Officer submitted a proposal on 28 March 2011 to the CIT(1) Thane through the Additional Commissioner of Income Tax Range (I) Thane. On 28 March 2011, the Additional CIT forwarded the proposal to the CIT and after recording a gist of the communication of the Assessing Officer stated that As requested by the A.O. Necessary approval for issue of notice u/s. 148 may kindly be granted in the case, if approved. On this a communication was issued on 29 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority have to be exercised by that authority and the satisfaction which the statute mandates of a distinct authority cannot be substituted by the satisfaction of another. We are in respectful agreement with the judgment of the Delhi High Court. 4.5 Hon ble Delhi High Court has also decided identical issue in favour of the assessee and against the Revenue in the case of S.P.L.Siddhartha Ltd. in ITA No.836 of 2011. This decision has also been considered by the Hon ble Bombay High Court (supra). Following observations of the Hon ble Delhi High Court are worth mentioning. 7. Section 116 of the Act also defines the Income Tax Authorities as different and distinct Authorities. Such different and distinct authorities have to exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Ors. Vs. ITO, 176 ITR 35 (Pat.), it was held: Where the Assessing Officer does not himself exercise his jurisdiction under Section 147 but merely acts at the behest of any superior authority, it must be held that assumption of jurisdiction was bad for non- satisfaction of the condition precedent. 5. The Apex Court in the case of Anirudh Sinhji Karan Sinhji Jadeja Vs. State of Gujarat, (1995) 5 SCC 302 has held that if a statutory authority has been vested with jurisdiction, he has to exercise it according to its own discretion. If discretion is exercised under the direction or in compliance with some higher authorities instruction, then it will be a case of failure to exercise discretion altogether. 6. We are, therefore, of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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