SHRI SOMNATH SAHU, RAIPUR V. INCOME TAX OFFICER, WARD 2(1), RAIPUR

ITA 243/RPR/2017

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 9975 (ITAT-RAIPUR)
• Duration Of Justice: 4 year(s) 11 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-09-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 04-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PRAFULLA PENDSE
• Keywords: Search and seizure; Principle of natural justice; Assessment record; Reason to believe; Capital Gains
• Section: 147; 148; 154; 143(3)

Judgement Text

आयकर अपीलȣय अͬधकरण Ûयायपीठ रायप ु र मɅ। IN THE INCOME TAX APPELLATE TRIBUNAL, RAIPUR BENCH, RAIPUR BEFORE SHRI RAVISH SOOD, JUDICIAL MEMBER AND SHRI ARUN KHODPIA, ACCOUNTANT MEMBER आयकर अपील सं. / ITA Nos. 243/RPR/2017 & 52/RPR/2018 Ǔनधा[रण वष[ / Assessment Year : 2008-09 Shri Somnath Sahu, H. No.2382, Near Shitala Mandir, Tatibandh, G.E. Road, Raipur (C.G.) PAN : GDKPS5958G .......अपीलाथȸ / Appellant बनाम / V/s. The Income Tax Officer, Ward-2(1), Raipur (C.G.) ......Ĥ×यथȸ / Respondent Assessee by :Shri Prafulla Pendse, AR Revenue by :Shri G.N Singh, Sr. DR स ु नवाई कȧ तारȣख / Date of Hearing :21.07.2022 घोषणा कȧ तारȣख / Date of Pronouncement : 23.09.2022 2 Shri Somnath Sahu Vs. ITO, Ward-2(1) ITA No.243/RPR/2017 ITA No.52/RPR/2018 आदेश / ORDER PER RAVISH SOOD, JM: The captioned appeals filed by the assessee are directed against the respective orders passed by the CIT(Appeals)-I, Raipur, dated 04.08.2017 &14.02.2018, which in turn arises from the respective orders passed by the A.O under Sec 147 r.w.s.143(3) of the Income-tax Act, 1961 (in short ‘the Act’) dated 28.03.2016 AND u/s. 154 of the Act dated 14.12.2016 for assessment year 2008- 09. As common issues are involved in the aforementioned appeals, therefore, the same are being taken up and disposed off together by way of a consolidated order. 2. We shall first take up the appeal filed by the assessee against the order of the CIT(Appeals) disposing off the appeal of the quantum appeal i.e ITA No.243/RPR/2017 for the assessment year 2008-09, wherein the impugned order has been assailed before us on the following grounds of appeal: “1. That the order of Ld. CIT(A) sustaining the order of the Ld. AO is bad in law as well as on facts and same should be annulled/set aside. 3 Shri Somnath Sahu Vs. ITO, Ward-2(1) ITA No.243/RPR/2017 ITA No.52/RPR/2018 2. That the Ld. AO erred in invoking the provisions of section 147/148 and the Ld. CIT(A) also erred by not adjudicating the issue raised in Ground No.2 before him. 3. That the Ld. CIT(A) erred by not complying with the provisions of natural justice. 4. That the Ld. AO & Ld. CIT(A) both erred in determining the taxable income of your appellant at Rs.95,41,384/- as against the returned income of Rs.67,000/- and thereby erred in making unwarranted addition of Rs.94,74,384/- ignoring the evidence of partition and Hon’ble S Courts decision in GowliBuddanna Vs. CIT reported in (1966) 60 ITR 293 as also other H.C’s decision cited before him. That the Ld. CIT(A) failed to quote and deal with said binding decisions raised in Ground No.4 before him while dismissing the appeal. 5. That the appellant denies his liability to interest charged u/s.234B of the I.T Act, 1961. That ld. CIT(A) thus failed to adjudicate the Ground No.5 raised before him. 6. That any other relief which the Hon’ble Court may deem fit be granted to your appellant. 7. That the appellant craves leave to urge, add, amend, alter, enlarge, modify, substitute, delete any of the ground/grounds and to adduce fresh evidence at the time of hearing of the appeal. 8. That the suitable cost be awarded to your appellant.” 3. Succinctly stated, on the basis of information received that though the assessee had during the year under consideration sold certain land for a consideration of Rs.1,03,11,900/- but had not filed his return of income, the A.O initiated proceedings u/s.147 of the Act. Notice u/s.148 dated 30.03.2015 was issued to the assesee after obtaining the prior approval of the Commissioner of Income Tax-1, Raipur. 4 Shri Somnath Sahu Vs. ITO, Ward-2(1) ITA No.243/RPR/2017 ITA No.52/RPR/2018 4. During the course of assessment proceedings, the assessee on being confronted with the aforesaid sale transaction distanced himself from the same and claimed that the land in question was not owned by him in his individual capacity but was owned by his HUF. However, the A.O did not find favour with the aforesaid claim of the assessee and vide his order passed u/s.147 r.w.s. 143(3), dated 28.03.2016 brought to tax the long-term capital gain (LTCG) of Rs.95,41,384/- on sale of the land in question to tax in the hands of the assessee. 5. Aggrieved, the assessee carried the matter in appeal before the CIT(Appeals) but without any success. 6. The assessee being aggrieved with the order of the CIT(Appeals) has carried the matter in appeal before us. 7. At the very outset of the hearing of appeal, the Ld. Authorized Representative (for short ‘AR’) for the assessee assailed the validity of jurisdiction that was assumed by the A.O by initiating proceedings u/s.147 of the Act in the hands of the assessee. Elaborating on his aforesaid contention, it was submitted by the Ld. AR that as per the 5 Shri Somnath Sahu Vs. ITO, Ward-2(1) ITA No.243/RPR/2017 ITA No.52/RPR/2018 pre-amended section 151 of the Act (as was applicable to the case of the assessee) for the year under consideration i.e. A.Y.2008-09, though a prior approval for reopening the case of the assessee was to be obtained by the A.O from the Joint Commissioner of Income-Tax ,however, the same in the present case had wrongly been obtained by him from the Commissioner of Income-Tax, Raipur. In order to drive home his aforesaid contention the Ld. AR had taken us through the observation of the A.O (Page No.1 of the assessment order), as well as those of the CIT(Appeals) (Page 2 - Para 2.1). The Ld. AR also took us through the pre-amended section 151 of the Act as was substituted vide the Direct Tax Laws (Amendment) Act, 1987 w.e.f. 01.04.1989, and was applicable to the case of the present assessee before us i.e. prior to its amendment vide the Finance Act, 2015 (20 of 2015) w.e.f. 01.06.2015. It was averred by the Ld. AR that as per the pre- amended section 151 of the Act, in a case where no assessment had earlier been framed either under sub-section (3) of 143 or 147 of the Act, no notice u/s.148 of the Act shall be issued by any Officer who was below the rank of Joint Commissioner, after expiry of a period of four year from the end of the relevant assessment year, unless the 6 Shri Somnath Sahu Vs. ITO, Ward-2(1) ITA No.243/RPR/2017 ITA No.52/RPR/2018 Joint Commissioner is satisfied on the reasons recorded by such Assessing Officer, that it is a fit case for the issue of such notice. 7.1 It was submitted by the Ld. AR that as the case of the present assessee who had not earlier filed his return of income for the year under consideration i.e. A.Y.2008-09, was reopened by the Income- Tax Officer, Ward-2(1), Raipur vide notice issued u/s.148, dated 30.03.2015 i.e. after the expiry of four year from the end of the relevant assessment year, therefore, the A.O as per sub-section (2) of Section 151 of the Act was required to obtain the approval of the Joint Commissioner of Income-Tax prior to the issuance of notice u/s.148 of the Act, dated 30.03.2015. It was submitted by the Ld. AR that the case of the assessee was however reopened by the A.O after obtaining the approval of the Commissioner of Income Tax-1, Raipur who in the case of the assessee was not the appropriate authority as per the mandate of section 151 of the Act. In order to buttress the aforesaid factual position the Ld. AR took us through the observation of the A.O, Page 1 of the assessment order, as well as those of the CIT(Appeals), Page 2 Para 2.1, which revealed that the case of the assessee had been reopened vide notice issued u/s.148, dated 30.03.2015 after obtaining the prior approval of the Commissioner of 7 Shri Somnath Sahu Vs. ITO, Ward-2(1) ITA No.243/RPR/2017 ITA No.52/RPR/2018 Income Tax-1, Raipur. On the basis of his aforesaid contention, it was the claim of the Ld. AR that as the case of the assessee had been reopened by not obtaining the approval from the appropriate authority as contemplated in sub section (2) of Section 151 of the Act, therefore, the A.O had wrongly assumed jurisdiction and framed the impugned assessment vide his order passed u/s.147 r.w.s.143(3)of the Act, dated 28.03.2016. Also, it was further submitted by the Ld. AR that a perusal of the body of the “Show Cause Notice” (SCN) clearly revealed that the impugned initiation of proceeding u/s.147 of the Act had been resorted to by the A.O without obtaining the necessary satisfaction of the appropriate authority, Page 78 of APB. Alternatively, it was averred by the Ld. AR that the Commissioner of Income-Tax had granted the approval in a mechanical manner i.e. without application of mind. In order to buttress his aforesaid contention, it was submitted by the Ld. AR that the very fact that the notice u/s.148 dated 30.03.2015 was issued on the same date on which sanction has been granted by the aforesaid authority in itself substantiated the fact that there was no application of mind on the part of the approving authority while 8 Shri Somnath Sahu Vs. ITO, Ward-2(1) ITA No.243/RPR/2017 ITA No.52/RPR/2018 granting his sanction. Apart from that, the Ld. AR had pressed his contention as regards the merits of the case. 8. Per contra, the Ld. Departmental Representative (for short ‘DR’) relied on the orders of the lower authorities. 9. We have heard the ld. authorized representatives of both the parties, perused the orders of the lower authorities and the material available on record, as well as considered the judicial pronouncements that have been pressed into service by them to drive home their respective contentions. 10. As the Ld. AR has assailed before us the validity of the jurisdiction that was assumed by the A.O for initiating proceedings u/s.147 of the Act in the hands of the assessee, therefore, we shall first deal with the same. It is the claim of the Ld. AR that as the A.O had initiated the impugned proceedings u/s.147 of the Act without obtaining approval from the appropriate authority i.e as per the mandate of sub section (2) of Section 151 of the Act, therefore, he had invalidly assumed jurisdiction and framed the assessment vide his order passed u/s. 147 r.w.s. 143(3) of the Act, dated 28.03.2016. It was the claim of the Ld. AR that as per sub-section (2) of Section 9 Shri Somnath Sahu Vs. ITO, Ward-2(1) ITA No.243/RPR/2017 ITA No.52/RPR/2018 151 of the Act as was applicable to the case of the present assessee i.e. prior to its amendment vide the Finance Act 2015 w.e.f. 01.06.2015, the A.O for the purpose of initiation of proceedings u/s.147 of the Act in the case of an assessee who was not earlier assessed either under sub section (3) of Section 143 or 147 of the Act, was required to obtain the approval of the Joint Commissioner of Income-Tax prior to issuance of the notice u/s.148 of the Act. It was submitted by the Ld. AR that as the A.O had failed to obtain any approval from the Joint Commissioner of Income-Tax but had obtained the same from the Commissioner of Income Tax-1, Raipur, therefore, he had wrongly assumed jurisdiction for initiating the proceedings in the hands of the assessee u/s.147 of the Act Although, the ld. AR had in order to buttress his aforesaid claim drawn support from the observations of the A.O and that of the CIT(Appeals), both of whom had categorically stated that the notice u/s.148 of the Act, dated 30.03.2015 was issued only after the prior approval of the Commissioner of Income Tax-1, Raipur, however, in order to dispel all doubts, we directed the Ld. DR to produce the assessment records. 10 Shri Somnath Sahu Vs. ITO, Ward-2(1) ITA No.243/RPR/2017 ITA No.52/RPR/2018 11. During the course of next hearing of the appeal, the Ld. DR had produced the assessment records before us. On a perusal of the records, we found that the case of the assessee was reopened for the following “reasons to believe” :- “Name of the assessee : Shri Somnath Sahu, Tatibandh, Raipur, (C.G.). A.Y. : 2008-09 PAN :----- Reasons for reopening of case u/s 147 The Assessee has sold the land for Rs. 1,03,11,900/-. on verification of the records/documents available in the office, it is noticed that, the assessee has not filed the return of income for any A.Yrs. as on date. As the land has been sold on substantial amount at Rs.1,03,11,900/-, The Capital Gains arising therefrom has not been offered for taxation by the assessee. In view of the above, I have reason to believe that income in excess of Rs. One Lac has escaped assessment within the meaning of section 147 of Income Tax Act. 1961, for the year under consideration. Sd/- ( Shobha Verma ) Income Tax officer-2(1), Raipur.” On a further perusal of the record, it transpired that the case of the assessee was reopened by obtaining approval as per the mandate of Section 151 of the Act, as under: 11 Shri Somnath Sahu Vs. ITO, Ward-2(1) ITA No.243/RPR/2017 ITA No.52/RPR/2018 Although, as per the aforesaid satisfaction note, it prima facie transpires that the A.O after obtaining the approval of the appropriate authority i.e Jt. CIT-2, Raipur, had thereafter merely supplemented the same by obtaining the approval as that of the Commissioner of Income Tax-1, Raipur, but we are afraid that the facts are not so as they appear to be. On a perusal of the letter dated 31.03.2015 written by the Jt. Commissioner of Income Tax, Range-2, Raipur to the ITO, Ward-2(1), Raipur, we find that it was categorically stated that the approval of the Commissioner of Income Tax-1, Raipur is being conveyed for taking action u/s.147/148 of the Act. For the sake of clarity, the aforesaid letter issued by the Jt. Commissioner of Income Tax, Range-2, Raipur is culled out as under: 12 Shri Somnath Sahu Vs. ITO, Ward-2(1) ITA No.243/RPR/2017 ITA No.52/RPR/2018 Also, a covering letter dated 30.03.2015 of the ITO (Tech)-1, O/o Commissioner of Income Tax-1, Raipur addressed to the Jt. CIT-2, Raipur inter alia conveying the submission of proposal for obtaining approval a/w. returning of the case records clearly evidences the fact that the issuance of notice u/s.148 was undeniably on the basis of 13 Shri Somnath Sahu Vs. ITO, Ward-2(1) ITA No.243/RPR/2017 ITA No.52/RPR/2018 the approval of the CIT-1, Raipur. For the sake of clarity, the aforesaid covering letter dated 30.03.2015 is culled out as under: 14 Shri Somnath Sahu Vs. ITO, Ward-2(1) ITA No.243/RPR/2017 ITA No.52/RPR/2018 15 Shri Somnath Sahu Vs. ITO, Ward-2(1) ITA No.243/RPR/2017 ITA No.52/RPR/2018 Apart from that, a perusal of the notice u/s.148 of the Act, dated 30.03.2015 puts to rest all doubts as to on the basis of approval of which authority the proceedings u/s.147 of the Act were initiated by the A.O. As per the notice u/s.148, dated 30.03.2015, the A.O had categorically stated that the same was being issued after obtaining the necessary satisfaction of the Commissioner of Income Tax-1, Raipur. For the sake of clarity, the notice u/s.148 dated 30.03.2015 is culled out as under:- 16 Shri Somnath Sahu Vs. ITO, Ward-2(1) ITA No.243/RPR/2017 ITA No.52/RPR/2018 Considering the aforesaid factual position, it can safely be gathered beyond doubt that the notice u/s.148 of the Act, dated 30.03.2015 was issued by the A.O after obtaining the approval of the Commissioner of Income Tax-1, Raipur. 12. We shall now deal with the sustainability of the claim of the Ld. AR that as the approval as per the mandate of sub-section (2) of 17 Shri Somnath Sahu Vs. ITO, Ward-2(1) ITA No.243/RPR/2017 ITA No.52/RPR/2018 Section 151 of the Act was required to be obtained from the Joint Commissioner of Income-Tax, while for the impugned proceedings had been initiated on the basis of the approval obtained from the Commissioner of Income Tax-1, Raipur, therefore, the A.O had wrongly assumed jurisdiction and framed the assessment u/s.147 /143(3) of the Act, dated 28.03.2016. Section 151 of the Act as was available on the statute i.e prior to its amendment vide Finance Act, 2015 w.e.f.01.06.2015, read as under: “S.151. Sanction for issue of notice.—(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 [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 the end of the relevant assessment year, no suchnotice shall be issued unless the [Principal Chief Commissioner or Chief Commissioner] or [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 [Joint Commissioner], after the expiry of four years from the end of the relevant assessment year, 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.] [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 issue of notice under section 148, need not issue such notice himself.]” (emphasis in bold supplied by us) 18 Shri Somnath Sahu Vs. ITO, Ward-2(1) ITA No.243/RPR/2017 ITA No.52/RPR/2018 As the case of the assessee for the year under consideration was not earlier subjected to an assessment under sub-section (3) of Section 143 or 147 of the Act, therefore, as stated by the Ld. AR and, rightly so, its case was regulated by sub-section (2) of Section 151 of the Act. As per the mandate of sub section (2) of Section 151 of the Act, in a case where no assessment was earlier framed under sub-section (3) of Section 143 or section 147 of the Act, then no notice shall be issued u/s.148 by an Assessing Officer who is below the rank of Joint Commissioner of Income Tax after expiry of four year from the end of the relevant assessment year 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. 13. Admittedly, as observed by us hereinabove, the A.O in the case of the present assessee i.e Income-Tax Officer, Ward 2(1), Raipur, had for the purpose of issuing notice u/s.148 of the Act obtained the approval of the Commissioner of Income Tax-1, Raipur, which we are afraid was not the appropriate authority to grant the requisite approval as per the mandate of section 151 of the Act. Considering the aforesaid facts, we shall now deliberate on the issue as to whether an assessment framed by the A.O in the present case u/ss. 19 Shri Somnath Sahu Vs. ITO, Ward-2(1) ITA No.243/RPR/2017 ITA No.52/RPR/2018 147/143(3), dated 28.03.2016 by issuing notice u/s.148, dated 30.03.2015 without obtaining the approval of the appropriate authority as per the mandate of section 151 of the Act can be sustained. In fact, we are confronted with another aspect i.e. as to whether the impugned assessment framed by the A.O on the basis of an approval obtained from the authority who is higher in rank i.e. Commissioner of Income Tax-1, Raipur as against the appropriate authority contemplated u/s.151 of the Act i.e. Joint Commissioner of Income Tax, Range-2, Raipur would confer valid jurisdiction upon him for framing the assessment. In our considered view the failure on the part of the A.O to obtain the sanction from the specified authority would vitiate the assessment. The sanction obtained by the A.O from the authority other than that specified in law, whether higher or lower will make no difference and would vitiate the proceedings and render the notice issued u/s.148 of the Act as invalid. Our aforesaid observation that the power which is conferred upon a particular authority has to be exercised by that authority and accordingly, the satisfaction which the statute mandates of a specified authority cannot be substituted by the satisfaction of a distinct authority is fortified by the judgment of the Hon’ble High 20 Shri Somnath Sahu Vs. ITO, Ward-2(1) ITA No.243/RPR/2017 ITA No.52/RPR/2018 Court of Bombay in the case of Ghanshyam K. Khabrani Vs. ACIT, 346 ITR 443 (Bom). In the case before the Hon’ble High Court though the approval as per the mandate of sub-section (2) of Section 151 was to be obtained by the A.O from the Joint Commissioner of Income-Tax, but the same was obtained by him from the Commissioner of Income-Tax. It was observed by the High Court that as the AO had failed to obtain the approval of the appropriate authority, therefore, the notice u/s.148 was liable to be quashed. It was further observed by the Hon’ble High Court that as the expression "Joint Commissioner" was defined in Section 2(28C) of the Act, therefore, as the Commissioner of Income Tax did not fall within the meaning of “Joint Commissioner”, thus the approval obtained by the A.O from him was devoid and bereft of any force of law. It was further observed by the Hon’ble High Court that when the statute mandates the satisfaction of a particular functionary for the exercise of a power, the satisfaction must be of that authority. For the sake of clarity, the relevant observation of the Hon’ble High Court is culled out as under: “There is merit in the contention raised on behalf of the Assessee that the requirement of Section 151(2) could have only been fulfilled by the satisfaction of the Joint Commissioner that this is a fit case 21 Shri Somnath Sahu Vs. ITO, Ward-2(1) ITA No.243/RPR/2017 ITA No.52/RPR/2018 for the issuance of a notice under Section 148. Section 151(2) mandates that the satisfaction has to be of the Joint Commissioner. That expression has a distinct meaning by virtue of the definition in Section 2(28C). The Commissioner of Income Tax is not a Joint Commissioner within the meaning of Section 2(28C). In the present case, the Additional Commissioner of Income Tax forwarded the proposal submitted by the Assessing Officer to the Commissioner of Income Tax. The approval which has been granted is not by the Additional Commissioner of Income Tax but by the Commissioner of Income Tax. There is no statutory provision here under which a power to be exercised by an officer can be exercised by a superior officer. When the statute mandates the satisfaction of a particular functionary for the exercise of a power, the satisfaction must be of that authority. Where a statute requires something to be done in a particular manner, it has to be done in that manner. In a similar situation the Delhi High Court in Commissioner of Income Tax Vs. SPL'S Siddhartha Ltd. (ITA No.836 of 2011 decided on 14 September 2011) held that powers which are conferred upon a particular authority have to be exercised by that authority and the satisfaction which the statute mandates of a distinct authority cannot be substituted by the satisfaction of another. We are in respectful agreement with the judgment of the Delhi High Court. In view of the findings which we have recorded on submissions (i), (ii) and (iv), it is not necessary for the Court to consider submission (iii) which has been urged on behalf of the Assessee. Once the Court has come to the conclusion that there was no compliance of the mandatory requirements of Section 147 and 151(2), the notice reopening the assessment cannot be sustained in law.” Also, similar view had been taken by the Hon’ble High Court of Delhi in the case of Commissioner of Income Tax Vs. SPL'S Siddhartha Ltd., 345 ITR 223 (Del). Again, it was observed by the Hon’ble High Court that as per Section 151 of the Act, in the case before them it was only the Joint Commissioner/Additional Commissioner who could have granted the approval for issuing notice u/s. 148 of the 22 Shri Somnath Sahu Vs. ITO, Ward-2(1) ITA No.243/RPR/2017 ITA No.52/RPR/2018 Act, therefore, the approval obtained by the AO from the Commissioner of Income-Tax not being an approval from the specified authority was invalid and not in the nature of an irregularity that was curable under Section 292B of the Act. Also, a similar observation had been recorded by the Hon’ble High Court of Karnataka in the case of CIT Vs. Sumandaladevi, 314 ITR 127 (Kar.). Observing, that the notice u/s 148 had not been issued by the A.O after obtaining the approval of the specified authority u/s.151(2) of the Act, the Hon’ble High Court had quashed the same by treating as invalid. On a similar footing the Hon’ble High Court of Bombay in the case of CIT Vs. Aquatic Remedies P. Ltd., 406 ITR 545 (Bom), had held, that it was mandatory on the part of the A.O to obtain the approval from the specified authority strictly as per the mandate of Section 151 (1) of the Act. In parity with the facts involved in the case of the present case before us, in the aforesaid case also the A.O for the purpose of issuing notice u/s.148 of the Act was obligated to obtain the approval of the Additional Commissioner of Income-Tax u/s.151(2) of the Act. It was observed by the Hon’ble High Court that though the Additional Commissioner of Income-tax in the case before them had recorded his satisfaction and held that it was fit case for 23 Shri Somnath Sahu Vs. ITO, Ward-2(1) ITA No.243/RPR/2017 ITA No.52/RPR/2018 reopening u/s.147 of the Act, however, records further revealed that not only the Commissioner of Income-Tax had thereafter granted approval to the A.O to issue notice u/s.148 of the Act, but had also addressed a letter to the Additional Commissioner of Income-Tax stating that he has granted the requisite approval. Considering the aforesaid facts, it was observed by the Hon’ble High Court that as it was the Commissioner of Income-Tax who had directed for issuance of notice u/s.148 of the Act to the A.O, therefore, it was clear beyond doubt that the final sanction of approval was that of the Commissioner of Income-Tax as was indicated in the approval form, and also in his correspondence with the Additional Commissioner of Income-Tax. Accordingly, the Hon’ble High Court on the basis of aforesaid facts by relying on its earlier order in the case of Ghanshyam K. Khabrani (supra), upheld the view taken by the Tribunal which had quashed the order passed by the A.O for want of valid assumption of jurisdiction, and dismissed the appeal filed by the revenue. 14. Considering the aforesaid facts involved in the present case before us, we are of the considered view that as the initiation of proceedings u/s.147 of the Act in the case of the assessee was based 24 Shri Somnath Sahu Vs. ITO, Ward-2(1) ITA No.243/RPR/2017 ITA No.52/RPR/2018 on the approval that was obtained by the A.O from the Commissioner of Income Tax-1, Raipur who as per the mandate of section 151 of the Act was not the appropriate authority, therefore, he had wrongly assumed jurisdiction and framed the impugned assessment u/s.147 r.w.s 143(3), dated 28.0-3.2016. We, thus, in terms of our aforesaid observation quash the order passed by the A.O u/s.147 r.w.s 143(3), dated 28.0-3.2016. 15. As we have quashed the assessment framed by the A.O for want of valid assumption of jurisdiction in terms of our aforesaid observations, therefore, we refrain from adverting to and therein adjudicating the other contentions that have been advanced by the Ld. AR i.e both on legal issue as well as on the merits of the case, which, thus, are left open. 16. In the result, appeal of the assessee in ITA No.243/RPR/2017 for the assessment year 2008-09 is allowed in terms of our aforesaid observations. ITA No.52/RPR/2018 A.Y.2008-09 25 Shri Somnath Sahu Vs. ITO, Ward-2(1) ITA No.243/RPR/2017 ITA No.52/RPR/2018 17. In the captioned appeal, the assessee has assailed the impugned order on the following grounds of appeal: “1. That the order of Ld. CI 1(A) sustaining the order of the Ld. A.O. is bad in law as well as on facts and same should be annulled/set aside. 2. That Ld. A.O and Ld. C.I.T(A) erred by not complying with the provisions of natural justice. 3. That any other relief which the Hon'ble Court may deem fit be granted to your appellant. 4. That the appellant craves leave to urge, add, amend, alter, enlarge, modify, substitute, delete any of the Ground/Grounds and to adduce fresh evidence at the time of hearing of the appeal. 5. That the suitable cost be awarded to your appellant.” 18. We have heard the Ld. Authorized Representatives of both the parties and perused the orders of the lower authorities as well as the material available on record. 19. As we have quashed the assessment framed by the A.O u/s. 147 r.w.s. 143(3), dated 28.03.2016 for want of valid assumption of jurisdiction, therefore, the captioned appeal filed by the assessee having been rendered as infructuous is accordingly dismissed. 20. In the result, appeal of the assessee in ITA No.52/RPR/2018 for the assessment year 2008-09 is dismissed in terms of our aforesaid observations. 26 Shri Somnath Sahu Vs. ITO, Ward-2(1) ITA No.243/RPR/2017 ITA No.52/RPR/2018 21. In the combined result, both the appeals of the assessee are disposed off as indicated hereinabove in terms of our aforesaid observations. Order pronounced under rule 34(4) of the Appellate Tribunal Rules, 1963, by placing the details on the notice board. Sd/- Sd/- ARUN KHODPIA RAVISH SOOD (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) रायप ु र/ RAIPUR ; Ǒदनांक / Dated : 23 rd September, 2022 SB आदेश कȧ ĤǓतͧलͪप अĒेͪषत / Copy of the Order forwarded to : 1. अपीलाथȸ / The Appellant. 2. Ĥ×यथȸ / The Respondent. 3. The CIT(Appeals)-1, Raipur (C.G) 4. The Pr. CIT-1, Raipur (C.G) 5. ͪवभागीय ĤǓतǓनͬध, आयकर अपीलȣय अͬधकरण,रायप ु र बɅच, रायप ु र / DR, ITAT, Raipur Bench, Raipur. 6. गाड[ फ़ाइल / Guard File. आदेशान ु सार / BY ORDER, // True Copy // Ǔनजी सͬचव / Private Secretary आयकर अपीलȣय अͬधकरण, रायप ु र / ITAT, Raipur.