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TMI Blog2015 (11) TMI 644X X X X Extracts X X X X X X X X Extracts X X X X ..... ner of Income Tax: the Ld CIT(A) failed to appreciate the fact that this case is covered under section 151(2) and not under section 151(1) of the act, as no previous assessment was made in this case, hence the approval of satisfaction for issuance of notice uls 148 was rightly sought from Addl. Commissioner of Income Tax by the Assessing Officer. 2.That the appellant is filling appeal as the case is covered under the exception as per para 8(a) of instructions 3 of 2011 issued by CBDT. 3.That the appellant craves for the permission to add, delete or amend the grounds of appeal before or at the time of hearing of appeal. 3. The brief facts of the case are that Notice u/s. 148 for the AY 2004-05 was issued to the assessee on 28.3.2011 and in response to notice u/s. 148 the assessee did not file her return of income within the statutory time prescribed in the notice. Thereafter notice u/s. 142(1) was issued on 6.5.2011 asking the assessee to file her return of income on or before 10.6.2011. The assessee filed her return of income declaring income on 19.10.2011 declaring income of Rs. 14,884/-. This return wsa revised on 14.11.2011 declaring the same income under the head 'income fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 2(16). It is cardinal principle of law that when a statute mandates the satisfaction of a particular functionary for the exercise of power, satisfaction must of that authority only, where a statute requires something to be done in a particular manner it has to be done in that manner. If it is a case so that the notice was not valid and was liable to be quashed. The Additional Commissioner of Income Tax is not a Commissioner within the meaning of section 2(16). The approval in this case has been granted is not by the Commissioner of Income Tax but by the Additional Commissioner of Income Tax. There is no statutory provision here under which a power to be exercised by an officer can be exercised by another officer. My above said line of argument based on the authority of Ghanshyam K. Khabrani Versus Assistant Commissioner of Income Tax and others Division Bench 346 ITR 443. The Additional Commissioner of Income Tax can not be Commissioner of Income Tax within the meaning of section 2(16). The Bombay High Court has held "there is no statutory provision under which a power to be exercised by an officer can be exercised by a superior officer when the statutes mandates the satisfa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority has been vested with jurisdiction he has to exercise it according to its own discretion. If discretion is exercised under direction or in compliance with the some higher authorities in section then it will be case of failure of exercise discretion altogether. Keeping in view of above said views expressed by the different High Court and Apex Court it is very much clear that the approval/ sanction to reopen the case and issued the notice u/ s 148 is to be of the same officer to whom law requires and not by the different officer. In the present case as per section 151 ( 1) proviso if the case is to be re-opened after expiry of 4 years the approval/ satisfaction should be of Commissioner of Income Tax only but in the present case the case is re-opened and notice 148 has been issued with the approval of Additional Commissioner of Income Tax who is different authority then the Commissioner of Income Tax as per section 2 of the Act and on this ground the notice issued under section 148 is bad in law and liable to be quashed. 2. The present case has been re-opened on the basis of the information received from ACIT Rewari that Shri Rati Ram Yadav and Smt. Sarti Devi resident ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. I have examined the submissions made by the appellant and the facts on record. The assessment year in question is 2004-05 and the notice uj s 148 was issued on 28.03.2011. This notice issued beyond 4 years from the end of the assessment year should, as per the provisions of the statute been approved by the Commissioner or the Chief Commissioner upon his satisfaction. However, the approval in this case has been taken from the additional CIT. The notice, therefore, is invalid and I quash the order. No adjudication is required on merits. 4. In the result, the appeal is allowed." 8. I have gone through the aforesaid order passed by the Ld. CIT(A) on the issue in dispute and I am of the considered view that according to Section 151(1) of the I.T. Act, after the expiry of the 4 years from the end of the relevant assessment year, no notice u/s. 148 of the I.T. Act shall be issued unless the Chief Commissioner or Commissioner is satisfied on the reasons recorded by the AO that is fit case for the issue of such notice. In my view the case of the Assessee is fall under section 151(1) of the I.T. Act and not u/s. 151(2) of the I.T. Act, because according to section 151(2) in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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