R.Lakshminarayanamoorthy, CHENNAI V. DCIT Corporate Circle 1, Coimbatore

ITA 1509/CHNY/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 6368 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 12-06-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B SAGADEVAN IRS
• Assessee Lawyers: T N SEETHARAMAN
• Section: 147; 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A (SMC) BENCH : CHENNAI . , [BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT M EMBER ] ./I.T.A. NO. 1509/MDS/2017 / ASSESSMENT YEAR : 2009-2010 R. LAKSHMINARAYANAMOORTHY, 49, RUKKAMMAL STREET, THUDIYALUR, COIMBATORE 641 034. [PAN AATPL 4105E] VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE 1, COIMBATORE ( !' / APPELLANT) ( #$!' /RESPONDENT) / APPELLANT BY : SHRI. T.N. SEETHARAMAN, ADV /RESPONDENT BY : SHRI. B. SAGADEVAN, IRS, JCIT. /DATE OF HEARING : 23-08-2017 !' /DATE OF PRONOUNCEMENT : 28-08-2017 % / O R D E R IN THIS APPEAL FILED BY THE ASSESSEE, IT HAS TAKEN ALTOGETHER ELEVEN GROUNDS OF WHICH GROUND NO.2 ASSAILS THE JUR ISDICTION TO DO A REASSESSMENT. 2. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ORI GINAL ASSESSMENT WAS COMPLETED U/S.143(3) OF THE INCOME T AX ACT, 1961 (IN ITA NO. 1509/MDS/2017. :- 2 -: SHORT THE ACT) FOR THE IMPUGNED ASSESSMENT YEAR . ACCORDING TO THE LD. AUTHORISED REPRESENTATIVE REASSESSMENT PROCEEDI NGS WERE INITIATED THROUGH A NOTICE DATED 30.03.2016 ISSUED U/S.148 OF THE ACT. AS PER LD. AUTHORISED REPRESENTATIVE REASSESSMENT PROCEED INGS HAVING BEEN INITIATED AFTER EXPIRY OF FOUR YEARS FROM THE END OF THE IMPUGNED ASSESSMENT YEAR, IT WAS NECESSARY FOR THE LD. ASSES SING OFFICER TO COMPLY WITH SEC. 151(1) OF THE ACT. LD. AUTHORISED REPRESENTATIVE POINTED OUT THAT SUCH SECTION STIPULATED APPROVAL O F CHIEF COMMISSIONER OF INCOME TAX/ PRINCIPAL COMMISSIONER OF INCOME TAX FOR ISSUING NOTICE U/S. 148 OF THE ACT AFTER EXPIRY OF FOUR YEARS. AS PER LD. AUTHORISED REPRESENTATIVE, HERE, NOTICE WAS IS SUED AFTER TAKING APPROVAL ONLY FROM THE ADDITIONAL COMMISSIONER OF INCOME TAX. THUS ACCORDING TO HIM, REOPENING DONE WAS INVALID. 3. PER CONTRA, LD. DEPARTMENTAL REPRESENTATIVE SUBMI TTED THAT WHETHER THE APPROVAL GIVEN BY THE ADDITIONAL COMMIS SIONER OF INCOME FOR ISSUE OF NOTICE U/S. 148 OF THE ACT WAS AFTER G ETTING CONCURRENCE FROM THE JURISDICTIONAL COMMISSIONER OF INCOME TAX WAS NOT CLEAR. 4. I HAVE CONSIDERED THE RIVAL CONTENTIONS AND PERUSE D THE ORDERS OF THE AUTHORITIES BELOW. FIRST SENTENCE OF PARA 2 OF THE ASSESSMENT ORDER IS REPRODUCED HEREUNDER:- ITA NO. 1509/MDS/2017. :- 3 -: FURTHER, AFTER NECESSARY APPROVAL RECEIVED FROM T HE ADDITIONAL COMMISSIONER OF INCOME TAX, CORPORATE RANGE (I/C), COIMBATORE NOTICE U/S. 148 DATED 30.03.2016 WAS ISSUED. IT IS CLEAR FROM THE ABOVE THAT NOTICE U/S. 148 OF THE ACT DATED 30.03.2016 WAS ISSUED BY THE LD. ASSESSING OFFICER AFTER GETTING APPROVAL FROM THE ADDITIONAL COMMISSIONER OF INCOM E TAX. THE IMPUGNED ASSESSMENT YEAR BEING 2009-2010, NOTICE I SSUED ON 30.03.2016 WAS AFTER EXPIRY OF FOUR YEARS. SECTIO N 151 OF THE ACT WHICH WAS RELIED ON BY THE LD. AUTHORISED REPRESENT ATIVE IS REPRODUCED HEREUNDER:- (1) IN A CASE WHERE AN ASSESSMENT UNDER SUB-SECTI ON (3) OF SECTION 143 OR SECTION 147 HAS BEEN MADE FOR THE RELEVANT ASSESSMENT YEAR, NO NOTICE SHALL BE IS SUED UNDER SECTION 148 BY AN ASSESSING OFFICER, WHO IS BELOW THE RANK OF ASSISTANT COMMISSIONER OR DEPUTY COMMISSIONER, UNLESS THE 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 T HE END OF THE RELEVANT ASSESSMENT YEAR, NO SUCH NOTICE SHALL BE ISSUED UNLESS THE PRINCIPAL CHIEF COMMISSI ONER OR CHIEF COMMISSIONER OR PRINCIPAL COMMISSIONER OR COMMISSIONER IS SATISFIED, ON THE REASONS RECORDED BY THE ASSESSING OFFICER AFORESAID, THAT IT IS A FIT C ASE 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 SECTIO N 148 BY AN ASSESSING OFFICER, WHO IS BELOW THE RANK OF 5 JOINT COMMISSIONER, AFTER THE EXPIRY OF FOUR YEARS FROM T HE END OF THE RELEVANT ASSESSMENT YEAR, UNLESS THE JOI NT ITA NO. 1509/MDS/2017. :- 4 -: COMMISSIONER IS SATISFIED, ON THE REASONS RECORDED BY SUCH ASSESSING OFFICER, THAT IT IS A FIT CASE FOR T HE ISSUE OF SUCH NOTICE. EXPLANATION FOR THE REMOVAL OF DOUBTS, IT IS HEREBY DECLARED THAT THE JOINT COMMISSIONER, THE PRINCIPAL COMMISSIONER OR COMMISSIONER OR THE PRINCIPAL CHIEF COMMISSIONER OR CHIEF COMMISSIONER, AS THE CASE MAY BE, BEING SATISFIED ON THE REASONS RECORDED BY THE ASSESSING OFFICER ABOUT FITNESS OF A CASE FOR THE I SSUE OF NOTICE UNDER SECTION 148, NEED NOT ISSUE SUCH NOTIC E HIMSELF. SUB-SECTION (1) OF SEC.151 DEALS WITH THE CASE WHER E NOTICE IS ISSUED AFTER EXPIRY OF FOUR YEARS FROM THE END OF THE ASSE SSMENT YEAR. IT IS CLEAR THAT SUCH NOTICE CANNOT BE ISSUED UNLESS PRI NCIPAL COMMISSIONER OF INCOME TAX/ CHIEF COMMISSIONER OF INCOME TAX OR COMMISSIONER OF INCOME TAX IS SATISFIED THAT IT IS A FIT CASE FOR I SSUING SUCH NOTICE. SUB SECTION (2) OF SEC.151 OF THE ACT DEALS WITH A CASE WHERE FOUR YEARS HAVE NOT EXPIRED AND IN SUCH CASES APPROVAL IS RE QUIRED ONLY FROM A JOINT COMMISSIONER OF INCOME TAX. DEFINITION OF CO MMISSIONER AS IT APPEARS IN SEC. 2(16) OF THE ACT IS REPRODUCED HERE UNDER:- COMMISSIONER MEANS A PERSON APPOINTED TO BE A COMMISSIONER OF INCOME TAX UNDER SUB-SECTION (1) OF SEC. 117. HIERARCHY OF INCOME TAX AUTHORITIES U/S. 116 OF THE ACT IS REPRODUCED HEREUNDER:- THERE SHALL BE THE FOLLOWING CLASSES OF INCOME-TA X AUTHORITIES FOR THE PURPOSES OF THIS ACT, NAMELY: ITA NO. 1509/MDS/2017. :- 5 -: (A) THE CENTRAL BOARD OF DIRECT TAXES CONSTITUTED U NDER THE CENTRAL BOARDS OF REVENUE ACT, 1963 (54 OF 1963 ), (AA) PRINCIPAL DIRECTORS GENERAL OF INCOME-TAX OR PRINCIPAL CHIEF COMMISSIONERS OF INCOME-TAX, (B) DIRECTORS-GENERAL OF INCOME-TAX OR CHIEF COMMISSIONERS OF INCOME-TAX, (BA) PRINCIPAL DIRECTORS OF INCOME-TAX OR PRINCIPAL COMMISSIONERS OF INCOME-TAX, (C) DIRECTORS OF INCOME-TAX OR COMMISSIONERS OF INCOME-TAX OR COMMISSIONERS OF INCOME-TAX (APPEALS) , (CC) ADDITIONAL DIRECTORS OF INCOME-TAX OR ADDITION AL COMMISSIONERS OF INCOME-TAX OR ADDITIONAL COMMISSIONERS OF INCOME-TAX (APPEALS), (CCA) JOINT DIRECTORS OF INCOME-TAX OR JOINT COMMISSIONERS OF INCOME-TAX ; (D) DEPUTY DIRECTORS OF INCOME-TAX OR DEPUTY COMMISSIONERS OF INCOME-TAX OR DEPUTY COMMISSIONERS OF INCOME-TAX (APPEALS), (E) ASSISTANT DIRECTORS OF INCOME-TAX OR ASSISTANT COMMISSIONERS OF INCOME-TAX, (F) INCOME-TAX OFFICERS, (G) TAX RECOVERY OFFICERS, (H) INSPECTORS OF INCOME-TAX. IT IS CLEAR FROM THE ABOVE HIERARCHY THAT ADDITION AL COMMISSIONER OF INCOME TAX IS BELOW THE LEVEL OF COMMISSIONER OF IN COME TAX. THUS IN MY OPINION APPROVAL FROM THE ADDITIONAL COMMISS IONER OF INCOME TAX WILL NOT SUFFICE FOR THE PURPOSE OF SEC. 151(1) OF THE ACT. IN THE CIRCUMSTANCES, I AM CONSTRAINED TO TAKE A VIEW THAT NOTICE ISSUED U/S. ITA NO. 1509/MDS/2017. :- 6 -: 148 OF THE ACT WAS INVALID. EX-CONSEQUENTI REASSE SSMENT ORDER IS SET ASIDE. SINCE THE APPEAL IS ALLOWED ON JURISDICTION AL ASPECTS, MERITS OF THE CASE ARE NOT CONSIDERED. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D. ORDER PRONOUNCED ON MONDAY, THE 28TH DAY OF AUGUST OF 2017, AT CHENNAI. SD/- ( . ) (ABRAHAM P. GEORGE) / ACCOUNTANT MEMBER #$ / CHENNAI %& / DATED : 28TH AUGUST, 2017 KV &' ()*) / COPY TO: 1 . / APPELLANT 3. +,- / CIT(A) 5. )./ 0 / DR 2. / RESPONDENT 4. + / CIT 6. /12 / GF