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TMI Blog2013 (10) TMI 1417X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant portion of aforementioned decision has already been reproduced. Relying thereon, we decide this issue in favour of assessee. - I .T.A. No. 4999/MUM/2010 - - - Dated:- 10-10-2013 - SHRI I.P. BANSAL, JM AND RAJENDRA, AM Appellant by: Shri Sanjeev Jain Respondent by : Shri Farrokh Iran O R D E R PER I.P. BANSAL,J.M: This is an appeal filed by the revenue. It is directed against the order passed by Ld. CIT(A)-35 Mumbai dated 30/03/2010 for the assessment year 2002-03. Grounds of appeal read as under: 1. On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in deleting the addition of ₹ 26,99,739/- made by the AO on account of LTCG without remanding the issue back to the file of the AO for the purpose of finding out the whereabouts of the original MOU and for taking opinion of the signature expert. 2. The appellant prays that the order of the Ld. CIT(A) on the above ground be set-aside and that of the AO be restored. 2. Before the appeal was argued by Ld. DR, it was submitted by Ld. AR that before Ld. CIT(A) the assessee had challenged the validity of reassessment proceedings as well as merits of the add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and therefore, revives assessee s objection to the reopening of the assessment made by the assessing authority u/s 147. The learned counsel submitted that even though the assessee was successful in first appeal on merits of the case, the assessee s around relating to the reopening of assessment was dismissed by the CIT(A), against which point, the assessee has not filed any appeal or cross objection. but the learned counsel submitted that by virtue of Rule 27, the assessee is still bestowed with the right to support the order of the CIT(A) on the basis of the ground of reopening which has been otherwise decided against the assessee. 6. We considered this argument very seriously. The relevant Rule 7.7 of Income-tax (Appellate Tribunal) Rules, 1963 reads as under: Respondent may support order on grounds decided against him (underline provided by us) 27. The respondent though he may not have appealed, may support the order appealed against on any of the grounds decided against him. 7. We do agree with the learned counsel appearing for the assessee that the assessee is permitted to revive the ground of reopening of the assessment which was dismissed by the CIT(A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpiry of four years from the end of the relevant assessment year, unless the [Joint] Commissioner is satisfied, on the reasons recorded by such Assessing Officer, that it is a fit case for the issue of such notice.] Explanation .-For the removal of doubts, it is hereby declared that the Joint Commissioner, the Commissioner or the Chief Commissioner, as the case may be, being satisfied on the reasons recorded by the Assessing Officer about fitness of a case for the issue of notice under section 148, need not issue such notice himself.] Referring to the aforementioned provision it was submitted by him that where the assessment earlier frame is otherwise than section 143(3) or 147 then notice of reassessment, if issued by an officer below the rank of Joint Commissioner of Income Tax, after the expiry of four years from the end of the relevant assessment year then the notice under section 148 has to be issued only in the circumstances when Joint Commissioner of Income Tax is satisfied on the reasons recorded by the AO that it is a fit case for issue of such notices. 6. Adverting to the facts of the present case it was submitted by Ld. AR that assessment in the present c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich 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 not been made under section 143(3) or section 147 for the assessment year 2004-05. Hence, under sub-section (2) of section 151, no notice can be issued under section 148 by an Assessing Officer who is below the rank of Joint Commissioner after the expiry of 4 years from the end of the relevant assessment year unless the Joint Commissioner is satisfied, on the reasons recorded by such Assessing Officer, that it is a fit case for the issue of 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 March 28, 2011, to the Commissioner of Income-tax (1), Thane, through the Additional Commissioner of Income-tax Range (I), Thane. On March 28, 2011, the Additional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conclusion that there was no compliance with the mandatory requirements of sections 147 and 151(2), the notice reopening the assessment cannot be sustained in law. For these reasons, we are of the view that the petitioner would be entitled to succeed. Rule is made accordingly absolute by quashing and setting aside the impugned notice dated March 30, 2011. There shall be no order as to costs. 8. Thus it was pleaded by Ld. AR that according to the established facts of the present case, approval has been granted by Commissioner of Income Tax instead of Joint Commissioner of Income Tax which is authorized to grant approval under the provisions of section 151 and in view of the aforementioned decision of Hon ble Jurisdictional High Court the issuance of notice under section 148 should be held to be non-sustainable in law. 9. On the other hand, on the aforementioned issue Ld. DR relied upon the order of Ld. CIT(A) vide which reassessment proceedings have been held to be valid. 10. We have heard both the parties and their contentions have carefully been considered. The validity or otherwise of reassessment proceedings were challenged before Ld. CIT(A) by way of additiona ..... X X X X Extracts X X X X X X X X Extracts X X X X
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