9911796707
TMI Blog2021 (12) TMI 1091X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment for AY 2014-15, order dated 28/11/2019 disposing of the objections of Petitioner against the reopening of assessment and notice dated 09/10/2019 issued under Section 143(2) and 142(1) of Income Tax Act, 1961 (hereinafter referred to as 'the Act'). 3. Since we are disposing of the present petition only on the ground of lack of prior approval as contemplated under Section 151 of the Act, only those facts essential for adjudication of the said issue are stated hereinafter. 4. The Petitioner is incorporated under the Companies Act, 1956. It provides tailor-made marine services to LNG terminals, ports, and oil & gas terminals around the world. 5. On 31/03/2019, Respondent No.1 uploaded a notice under Section 148 of the Act and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 147 is based on tangible material. 8. Petitioner has filed the present petition for the reliefs stated above. This Court, on 18/12/2019, granted time to Respondents to file a reply. However, the Respondents, till today, have failed to file their reply. Therefore, the petition is being decided without the reply of Respondents. 9. Mr. Nishant Thakkar, learned Counsel for Petitioner, inter alia, submitted that Respondent No.1 has committed an error of jurisdiction by passing the re-assessment order without there being valid sanction as contemplated under Section 151 of the Act. He submitted that prior approval under Section 151 of the Act is mandatory. From the copy received by the Petitioner, it is clear that the notice was issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oned and bona fide. The remark on the part of superior authority must indicate application of mind by giving reasons for prior approval. 12. The legislature has advisedly used the expression 'No notice shall be issued' in section 151. The expression 'No notice shall be issued ' cannot be construed to mean post-facto approval. The expression "No notice shall be issued" reflects the intention of the legislature to indicate that prior approval is the sine qua non before issuance of notice under Section 148 of the Act. The purpose of insertion of expression 'No notice shall be issued ' before issuing a notice of re-assessment is to avoid harassment to taxpayers and the arbitrary exercise of the power to reopen the assessment. It is introdu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in paragraph 7 held as under : "7. We have considered the rival contentions and we find that while according sanction, the Joint Commissioner, Income Tax has only recorded so "Yes, I am satisfied". In the case of Arjun Singh (supra), the same question has been considered by a Coordinate Bench of this Court, and the following principles are laid down : 'The Commissioner acted, of course, mechanically in order to discharge his statutory obligation properly in the matter of recording sanction as he merely wrote on the format "Yes, I am satisfied" which indicates as if he was to sign only on the dotted line. Even otherwise also, the exercise is shown to have been performed in less than 24 hours of time which also goes to indicate that the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complying with Section 151 was not satisfied, resulting in Respondent No.1 committing the error of jurisdiction by issuing notice under Section 148 of the Act calling for interference under Article 226 of the Constitution of India. 17. We, therefore, pass the following order :- "Rule is made absolute in terms of prayer clause (1) which reads thus : (a) This this Hon'ble Court be pleased to issue a Writ of Certiorari or a writ in the nature of Certiorari or any other appropriate writ, order or direction under Article 226 of the Constitution of India calling for the records of the Petitioner's case and after examining the legality and validity thereof quash and set aside the Impugned Notice under Section 148 of the Act (Exhibit "L") and ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
