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TMI Blog2022 (12) TMI 429X X X X Extracts X X X X X X X X Extracts X X X X ..... see is directed against the order dated 31.07.2018 of the CIT(A), Ghaziabad, relating to Assessment Year 2009-10. 2. The grounds raised by the assessee read as under:- 1. That having regard to the facts and circumstances of the case, Ld. CIT (A) has erred in law and on facts in confirming the action of Ld. AO in framing the impugned reassessment order u/s 148/144 and that too without assuming jurisdiction as per law and without complying with the mandatory conditions u/s 147 to 151 as envisaged under the Income Tax Act, 1961. 2. That in any case and in any view of the matter, action of Ld. CIT (A) in confirming the action of Ld. AO in framing the impugned reassessment order u/s 148/144, is bad in law and against the facts and circumstances of the case. 3. That having regard to the facts and circumstances of the case, Ld. CIT (A) has erred in law and on facts in confirming the addition of Rs. 12,56,487/- allegedly on the ground that the land sold by the appellant was not the agricultural land and that too by recording incorrect facts and findings. 4. That having regard to the facts and circumstances of the case, Ld. CIT (A) has erred in law and on facts in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned by the Postal Department with the remark, incomplete address and, thereafter, the AO did not bother to gather complete and proper address of the assessee and to issue notice at such address and to serve the same on the assessee as per the requirement of law. The ld. Counsel further placing reliance on the order of the ITAT Amritsar Bench dated 11.05.2016 in the case of Shri Amrik Singh vs. ITO, in ITA No.630/Asr/2015 submitted that the condition that some proceeding must be pending is no longer applicable after 01.07.1995, but, under the provisions of section 133(6) of the Act, the prescribed authority have the power to call for any information for the purpose of enquiry under the Act even in cases where there is no proceeding pending and the Income-tax Authority below the rank of Director or Commissioner can exercise the said power in respect of an inquiry only with the prior approval of the Director or the Commissioner. The ld. Counsel submitted that there is no iota of fact emerging from the assessment order that the AO has obtained any approval before issuing letter dated 30.10.2015/notice to the assessee as per the mandate of section 133(6) of the Act. He further submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Counsel also pointed out that from the assessment order it is also very clear that in the present case, the reassessment proceedings have been initiated after the expiry of four years, but, as per the requirement of proviso to section 151(c) of the Act, the AO has not obtained any approval of the competent authority before issuing notice u/s 148 of the Act and omission to comply with mandatory provisions of the Act vitiates the reassessment proceedings and consequent reassessment order. 6. On careful consideration of the above rival submissions, first of all, I find it necessary to reproduce the reasons recorded by the AO for initiation of reassessment proceedings which read as follows:- Parvez Ali S/o Sh. Mohd Kalwa, Village Dasna, Ghaziabad. AY 2009-10. 11. Reasons for the belief that income has escaped assessment. On the basis of AIR information, verification letter 30.10.2015 was issued to the assessee to verify the sale of immovable property during F.Year 2008-09 relevant to A. Year 2009-10 for Rs.68,72,000/-. No compliance of verification letter was made by the assessee till date. The assessee has not filed return of income for the A. Ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lying with the mandatory conditions u/s 147-151 of the Act. From the relevant operative part of para 8.1 I further note that the ld.CIT(A) mentioned that the brother of the appellant attended the proceedings on 21.11.2016 and made submissions and as per the AO s report, appellant s brother attended the proceedings on 06.10.2016 and copies of notices were provided to him. But, neither in the assessment order nor in the first appellate order, there is no whisper of any approval u/s 151 of the Act. It is also relevant and pertinent to mention that during the first appellate proceedings, the AO submitted a remand report dated 29.05.2018 wherein the AO stated that the notices issued to the assessee u/ss 148 and 142(1) of the Act were returned by the Postal Department with the remark: incomplete address. He further stated that on 06.10.2016, the brother of the assessee Shri Javed Ali, who attended was provided the copy of notice issued from the Office of the ITO, but, there is no mention regarding obtaining of approval u/s 151 of the Act from the competent authority. 10. On above submissions, I may point out that by way of Finance Act, 2021, w.e.f. 01.04.2021, section 151 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 149 of the Act. Regarding compliance of section 148 of the Act, I am of the view that since the AO provided copy of the notice u/s 148 of the Act and other notices to the brother of the assessee on 06.10.2016, the same is sufficient to comply with the requirement of section 148 of the Act regarding service of notice before framing reassessment order. My conclusion also gets strong support from the judgement of the Hon ble Supreme Court in the case of R.K. Upadhyaya vs. Shanabhai P. Patel (1987) 166 ITR 163 (SC). Therefore, this legal ground of the assessee fails. 12. Since, in the earlier part of this order, I have concluded that the AO has not obtained mandatory approval under sub-section (1) of section 151 of the Act before issuing notice u/s 148 of the Act from the competent authority, therefore, this omission vitiates the reassessment proceedings, notice u/s 148 of the Act and consequent reassessment order dated 05.12.2016 being bad in law and without assuming valid jurisdiction by the AO as per the mandate of section 151 of the Act. Therefore, on this count, legal ground of the assessee is allowed and reassessment proceedings, notice u/s 148 of the Act and consequent imp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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