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TMI Blog2020 (11) TMI 1008X X X X Extracts X X X X X X X X Extracts X X X X ..... before him against the order of the income tax Officer, Ward 23 (1), New Delhi dated 30th 11 2017 passed u/s 263/147/144 of the income tax act 1961 assessing the total income of the assessee at ₹ 2,057,600/ against the returned income filed by the assessee on 31st of March 2015 of ₹ 21,600 2. The assessee has raised the following grounds of appeal in ITA No. 7583/Del/2019 for Assessment year 2007-08:- 1. Because the action is under challenge on facts law that the CIT(A) has erred and is in violation to the principles of natural substantial justice for a decision in accordance with law. 1.1. Because the action for concluding the reassessment is being challenged, since the 'approval' has not taken from the designated authority is in violation of section 151(2) additionally the sanctioning authority is not having 'charge' over the 'records' while granting the said approval. 1.2. Because the action for initiation, continuation and conclusion of reassessment proceedings is being challenged on facts law. 1.3. Because the action for initiation of reassessment proceedings is unreasonable since while recording reasons, there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax act wherein he has made an addition of ₹ 20 lakhs to the total income of the assessee u/s 68 of the act and further made an addition of ₹ 36,000/ towards the rate of commission for obtaining accommodation entries and thereby the total income of the assessee was assessed at ₹ 2,057,600/ against the assessed income u/s 147 read with Section 143 (3) dated 31/3/2015 of ₹ 21,600. 6. The assessee preferred an appeal before the learned CIT A against the above order of the learned assessing officer which was decided by him on 22/8/2019 dismissing the appeal of the assessee. Therefore assessee is aggrieved with that order has preferred an appeal before us. 7. The learned authorised representative adverting to ground number 1.1 of the appeal stated that while concluding the reassessment, the proper approval u/s 151 (2) has not been taken from proper authority and therefore the original order passed u/s 147 of the act on 31 March 2015 is bad in law. He submitted that though this is the appeal against the order passed by the learned Commissioner of income tax- A in order passed by the learned assessing officer in pursuance of the order u/s 263 of the inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the learned assessing officer u/s 143 (3) read with Section 147 and 263 of the income tax act is also a nullity. He therefore submitted that when the foundational order itself is a nullity subsequent addition to the income also does not survive accordingly. 10. The learned departmental representative vehemently objected to the submission of the learned authorised representative stating that it is an appeal against the order of the learned CIT A which has been passed in appeal filed by the assessee against the order passed by the learned assessing officer pursuant to the order of principal Commissioner of income tax u/s 263 of the income tax act wherein it has been held that the order passed by the learned assessing officer on 31st of March 2015 u/s 143 (3) read with Section 147 of the income tax act is erroneous and prejudicial to the interest of revenue, a lot of water has flowed down after that and now assessee cannot say that in the reopening proceedings the proper approval has not been taken. 11. To this assessee submitted that this is not the plea which has been taken before the coordinate bench for the first time but was also taken before the learned CIT A. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provision as it existed then are as Under:- 21 [Sanction for issue of notice. 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 Deputy Commissioner], unless the 24 [Joint] Commissioner is satisfied on the reasons recorded by such Assessing Officer that it is a fit case for the issue of such notice] : Provided that, after the expiry of four years from the end of the relevant assessment year, no such notice shall be issued unless the 24a [Principal Chief Commissioner or] Chief Commissioner or 24a [Principal Commissioner or] Commissioner is satisfied, on the reasons recorded by the Assessing Officer aforesaid, that it is a fit case for the issue of such notice. (2) In a case other than a case falling under sub-section (1), no notice shall be issued under section 148 by an Assessing Officer, who is below the rank of 24 [Joint] Commissioner, after the expiry of four years from the end of the relevant assessment year, unless the 24 [Joint] Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is dated March 26, 2012. The note prepared by Mr. Mazhar Akram, the Assessing Officer, reads : No records for assessment year 2005-06 are traceable. ITD is showing the ROI processed for the assessment year 2005-06. In the light of the reasons recorded in annexure A, approval for issue of notice under section 148 of the Income-tax Act, 1961 is sought . The said note was put up to the Addl. DIT who recorded put up for approval with his signature and put up the file to the DIT. The next signature on the file is that of the DIT who states in a single word approved . 6. From the above noting on the file it is seen that the Addl. DIT merely put up for approval the file and did not himself accord approval of the Assessing Officer's proposal for reopening the assessment for the assessment year 2005-06. 7. It is contended by Mr. Rahul Chaudhary, learned senior standing counsel for the Department, that when the Addl. DIT recorded the words put up for approval he, in fact, should be understood to have applied his mind, approved the note of the Assessing Officer, and only thereafter put up the note for further approval to the DIT. He further sought to explain that it is onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accord the approval. It, thus, cannot be said that it is an irregularity curable under section 292B of the Act. 10. In Soyuz Industrial Resources Ltd. (supra), the court explained : 8. The Revenue's argument seems plausible and even logical because the Commissioner or a Chief Commissioner is unarguably ranked higher in authority than a Joint Commissioner. Yet at the same time, this court has to give effect to plain words of the statute which unambiguously states that the competent authority in such cases is the Joint Commissioner (and not the Chief Commissioner or the Principal Commissioner). The Revenue's submissions that all such cases, are covered under proviso to section 147(1), the competent authority for prior approval would be four superior officers, renders section 151(2) superfluous. If anything the court is clear that it is not its job to render, in the process of interpretation, an entire provision academic or inoperative. This court is of the opinion that accepting the Revenue's position would result in that consequence. The court also invokes the principle enunciated by the Privy Council in Nazir Ahmad v. Emperor, AIR 1936 PC 253 : that if the stat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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