ASHISH C. SINGHANIA, MUMBAI V. ACIT 17(1), MUMBAI

ITA 1039/MUM/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0672 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2007-2008
• Appeal Filed On: 14-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A , MUMBAI BEFORE SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER AND SHRI RAJESH KUMAR , HON'BLE ACCOUNTANT MEMBER ITA NO. 1039 /MUM/201 7 (A.Y: 2007 - 08) SHRI ASHISH C. SINGHANIA 72 - A, MITTAL TOWER, NARIMAN POINT, MUMBAI 400 021 PAN: AAFPS 5268 K V. A.C.I.T. CIRCLE 17(1) MUMBAI (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI NEELKANTH KHANDELWAL DEPARTMENT BY : SHRI ANOOP HIWASE DATE OF HEARING : 26 .10.2018 DATE OF PRONOUNCEMENT : 14 .11 .2018 O R D E R PER C. N. PRASAD (JM) 1. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) - 28, MUMBAI [HEREINAFTER IN SHORT LD.CIT(A)] DATED 15.11.2016 FOR THE ASSESSMENT YEAR 2007 - 08. 2. THE ASSESSEE BEFORE US RAISED THE ADDITIONAL GROUNDS OF APPEAL AS UNDER: - THE INCOME TAX OFFICER - 12(3)(1), MUMBAI ERRED IN ISSUING NOTICE U/S. 148 OF THE ACT WITHOUT OBTAINING APPROPRIATE APPROVAL AND THAT TOO FROM THE APPROPRIATE AUTHORITY AND HENCE THE ASSESSMENT IS BAD IN L AW, THEREBY RENDERING THE ENTIRE ASSESSMENT PROCEEDINGS IS NULL AND VOID. 2 ITA NO.1039/MUM/2017 (A.Y: 2007 - 08) SHRI ASHISH C. SINGHANIA 3. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT SINCE THIS GROUND BEING PURE LEGAL GROUND THE SAME MAY BE ADMITTED AND DISPOSED OFF. 4. ON A PERUSAL OF THE ADDITIONAL GROUND RAISED BY THE ASSESSEE, IT IS CLEAR THAT THE ASSESSEE IS CHALLENGING THE VERY JURISDICTION OF THE ORDER PASSED BY THE ASSESSING OFFICER U/S. 143 (3) R.W.S. 147 OF THE ACT, AND THEREFORE, WE ADMIT THIS LEGAL GROUND AND DISP OSE OFF ON HEARING THE PARTIES. 5. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ORIGINAL ASSESSMENT WAS COMPLETED U/S. 143(3) ON 16.11.2009 ACCEPTING THE INCOME RETURNED BY THE ASSESSEE. SUBSEQUENTLY, THE ASSESSMENT WAS REOPENED BY ISSUING OF NOTICE U/S.148 OF THE ACT DATED 25.03.2014. IT IS SUBMI TTED THAT THE ASSESSMENT WAS REOPENED BEYOND FOUR YEARS. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT IF THE ASSESSING OFFICER WANTED TO REOPEN THE ASSESSMENT BEYOND FOUR YEARS , AS PER PROVISO TO SECTION 151(1) OF THE ACT THE ASSESSING OFFICER SHALL OBTAIN APPROVAL FROM EITHER CHIEF COMMISSIONER OR COMMISSIONER OF INCOME - TAX. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN THIS CASE THE PERMISSION WAS NOT GRANTED BY THE CHIEF COMMISSIONER OR COMMISSIONER OF INCOME - TAX AND THEREFORE, THE ASSESSMENT MADE U/S. 143(3) R.W.S. 147 OF THE ACT IS INVALID. 3 ITA NO.1039/MUM/2017 (A.Y: 2007 - 08) SHRI ASHISH C. SINGHANIA 6. IN THE COURSE OF HEARING, THE BENCH WHILE HEARING THE MATTER ON 28.09.2018 DIRECTED THE LD. DR TO PRODUCE THE RECORDS TO VERIFY THE CONTENTION OF THE ASSESSEE THAT THE APPROVAL WAS NOT GRANTED BY CHIEF COMMISSIONER OR COMMISSIONER OF INCOME - TAX FOR REOPENING THE ASSESSMENT AND THE MATTER WAS FIXED FOR HEARING ON 26.10.2018. ON 26.10.2018 THE LD. DR SUBMITTED THAT PERMISSION WAS GRANTED BY ADDITIONAL COMMISSIONER OF INCOME - TAX, MUMBAI AND NOT BY THE CHIEF COMMISSIONE R OR COMMISSIONER OF INCOME - TAX. A COPY OF THE PERMISSION LETTER WAS SHOWN TO THE BENCH. A COPY OF THE SAME WAS DIRECTED TO BE FILED. ON A PERUSAL OF THE APPROVAL LETTER, WE FIND THAT THE APPROVAL WAS GRANTED BY ADD ITIONAL COMMISSIONER OF INCOME - TAX BUT NOT BY THE CHIEF COMMISSIONER OR COMMISSIONER OF INCOME - TAX. PROVISIONS OF SECTION 151(1) I.E. SANCTION FOR ISSUE OF NOTICE READ AS UNDER: - '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 [BY AN ASSESSING OFFICER, WHO IS BELOW THE RANK OF ASSISTANT COMMISSIONER [OR THE DEPUTY COMMISSIONER] UNLESS THE [JOINT] COMMISSIONER IS SATISFIED ON THE REASONS RECORDED BY SUCH ASSESS ING 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 CHIEF COMMISSIONER OR COMMISSIONER IS SATISFIED, ON THE RE ASONS RECORDED BY THE ASSESSING OFFICER AFORESAID, THAT IT IS A FIT CASE FOR THE ISSUE OF SUCH NOTICE.' 7. UNDISPUTEDLY IN THIS CASE THE ASSESSMENT WAS REOPENED BEYOND FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR AND THEREFORE, THE ASSESSING OFFICE R OUGHT TO HAVE TAKEN APPROVAL OF THE CHIEF COMMISSIONER OR COMMISSIONER OF INCOME - TAX FOR REOPENING THE 4 ITA NO.1039/MUM/2017 (A.Y: 2007 - 08) SHRI ASHISH C. SINGHANIA ASSESSMENT WHICH THE ASSESSING OFFICER FAILED TO DO SO. SINCE THE APPROVAL WAS NOT GRANTED BY THE APPROPRIATE AUTHORITY FOR REOPENING THE ASSESSMENT, THE ISSUE OF NOTICE U/S.148 OF THE ACT AND CONSEQUENTIAL ASSESSMENT MADE U/S.143(3) R.W.S. 147 ARE NOT LEGALLY SUSTAINABLE AND BAD IN LAW. HENCE WE QUASH THE ASSESSMENT MADE U /S. 143(3) R.W.S. 147 OF THE ACT. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOW ED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 14 TH NOVEMBER , 2018 SD/ - SD/ - ( R AJESH KUMAR) ) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI / DATED 14 / 11 / 2018 GIRIDHAR , SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER (ASSTT. REGISTRAR) ITAT, MUM