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TMI Blog2017 (2) TMI 997X X X X Extracts X X X X X X X X Extracts X X X X ..... ngh, Judicial Member For The Assessee : Shri Vimal Punmiya (AR) For The Revenue : Ms. Beena Santosh (DR) Order u/s.254(1)of the Income- tax Act,1961(Act) Per Pawan Singh, J.M. 1. These two appeals by assessee under section 253 of the Income Tax Act ( Act ) are directed against the separate orders of Ld. Commissioner of Income-Tax (Appeals)- 6, [for short the CIT(A) ] Mumbai dated 11.10.2012 for Assessment Year (AY) 2004-05 2006-07. As the assessee has raised the similar grounds of appeal, facts for both the year are similar, thus, both the appeal were clubbed together, heard and are decided by a consolidated order to avoid the conflicting decision. For appreciation of facts first we are referring the facts of ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f facts of the case are that the assessee-company filed its return of income for relevant AY on 31.10.2004 declaring loss of ₹ 24,08,2011/-. The return of income was processed u/s 143(1) of the Act on 16.02.2005. Subsequently, the return of income was re-opened during the course of assessment proceeding for AY 2008- 09. During the assessment of AY 2008-9 the Assessing Officer (AO) observed that assessee stopped its business activity in 1997, therefore, he has reason to believe that assessee was allowed excessive loss and the income of the assessee has escaped assessment. Therefore, the AO issued notice u/s 148 on 23.03.2011. In response to the notice u/s 148, the assessee filed return of income on 18.04.2011. The assessee objected for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat assessment was reopened beyond the four years of end of relevant AY. The ld. AR for assessee in alternative argued that permission for re-opening from competent person as required u/s 151 of the Act, was not obtained by AO. The ld. AR of the assessee further argued that necessary permission should have been obtained from JCIT as provided u/s151(2). In support of alternative submission, the ld. AR of the assessee relied upon the decision of Hon ble jurisdictional High Court in D S J Communication vs. DCIT (2014) 41 taxmann.com 151 (Bom), decision of Delhi High Court in CIT vs. SPL S Siddhartha Ltd. (2012) 17 taxmann.com138 (Del.) and in Shri Ghanshyam K. Khabrani vs. ACIT (2012) 20 taxmann.com 716 (Bom). On the other hand, ld. DR for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll material facts necessary for his assessment in that AY. The notice u/s 148 dated 23.03.2011 was issued wherein the AO has recorded This notice is being issued after obtaining necessary satisfaction of the CIT . The Hon ble jurisdictional High Court in case of Shri Ghanshyam K. Khabrani (supra), while discussing the similar ground with regard to the permission /approval for re-opening from competent person held that approval of Commissioner is of no consequence in any event, if the said approval is contrary to the provisions of section 151 of the Act. The Hon ble jurisdictional High Court after discussing the provision of section 151 of the Act held as under: 6. The second ground upon which the reopening is sought to be challenged i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing officer. There is merit in the contention raised on behalf of the Assessee that the requirement of Section 151 (2) could have only been fulfilled by the satisfaction of the Joint Commissioner that this is a fit case for the issuance 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 Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 014 taxman.com 131(Allahabad) held that without passing the assessment order, there is no occasion to pass re-assessment order u/s 147 of the Act. And further the Third Member decision of Mumbai Tribunal in case of Telco Dadajee Dhacklee Ltd. vs. DCIT 2010(5)TMI 690 ITAT Mumbai held that in absence of reason to believe that income chargeable to tax has escaped assessment is bad-in-law and the assessment made in pursuance thereof is liable to be cancelled as invalid, even if the assessment was completed originally u/s 143(1) of the Act. 7. Thus, from the above discussion, we may conclude that there was no new material before the AO for re-opening of the concluded assessment. The re-opening was made beyond the four year from the end of rel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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