CAPT V. VIJAY KUMAR NAIR, MUMBAI V. ACIT 2(2), MUMBAI

ITA 4280/MUM/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4062 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 7 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 30-09-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 21-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PREMANAND J
• Assessee Lawyers: M SUBRAMANIAN
• Keywords: Competent authority
• Section: 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH E, MUMBAI BEFORE N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER ITA NO.4280/M/2012 ASSESSMENT YEAR: 2005-06 CAPT. V. VIJAY KUMAR NAIR, C/O. PANGEA SHIPPING AGENCIES P. LTD., 309, SKYLARK BUILDING, SECTOR II, CBD BELAPUR, NAVI MUMBAI 400 614 PAN: AAAPN 4926A VS. ACIT 2(2), IT OFFICES, AAYAKAR BHAVAN, M.K. ROAD, CHURCHGATE, MUMBAI - 400020 (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI M. SUBRAMANIAN, A.R. REVENUE BY : SHRI PREMANAND J, D.R. DATE OF HEARING : 30.09.2015 DATE OF PRONOUNCEMENT : 03.02.2016 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSES SEE AGAINST THE ORDER DATED 14.03.2012 OF THE COMMISSIONER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO ASSESSMENT Y EAR 2005-06. 2. AT THE OUTSET, THE LD. A.R. OF THE ASSESSEE HAS POINTED OUT THAT THE ASSESSMENT PROCEEDINGS IN THIS CASE HAVE BEEN REOPE NED UNDER SECTION 147 OF THE ACT AFTER MORE THAN FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR. HE HAS INVITED OUR ATTENTION TO SECTION 151( 1) OF THE ACT WHEREIN IT HAS BEEN PROVIDED THAT NO NOTICE SHALL BE ISSUED UNDER SECTION 148 BY ASSESSING OFFICER (HEREINAFTER REFERRED TO AS THE AO) AFTER T HE EXPIRY OF A PERIOD OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR UNLESS THE PRINCIPAL CHIEF COMMISSIONER OR CHIEF COMMISSIONER OR PRINCIPAL COM MISSIONER OR COMMISSIONER IS SATISFIED ON THE REASONS RECORDED B Y THE AO THAT IT IS A FIT CASE ITA NO.4280/M/2012 CAPT. V. VIJAY KUMAR NAIR 2 FOR THE ISSUE OF SUCH NOTICE. THE LD. A.R. HAS FUR THER INVITED OUR ATTENTION TO THE SANCTION LETTER BEARING NO.ACIT-2(2)(2)/ITAT MA TTER/2014-15 DATED 27.01.2015 WHEREIN THE SANCTION HAS BEEN GRANTED BY ADDITIONAL COMMISSIONER OF INCOME TAX AND NOT BY THE COMMISSIO NER OF INCOME TAX AND ABOVE AS PROVIDED UNDER SECTION 151(1) OF THE A CT. THE LD. A.R. HAS RELIED UPON THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF DSJ COMMUNICATIONS LTD. VS. DCIT (2014) 22 TAXMAN .COM 129 WHEREIN THE HONBLE BOMBAY HIGH COURT HAS HELD THAT THE SANCTIO N FOR ISSUE OF NOTICE SHOULD BE FROM THE COMPETENT AUTHORITY AS PROVIDED UNDER THE PROVISIONS OF THE ACT. THE HONBLE BOMBAY HIGH COURT HAS RELIED UPON THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. SP LS SIDDHARTHA LTD. (2012) 17 TAXMAN.COM 138 WHEREIN IT HAS BEEN HELD T HAT THE POWERS WHICH ARE CONFERRED ON A PARTICULAR AUTHORITY HAVE TO BE EXER CISED BY THAT AUTHORITY AND THE SATISFACTION WHICH THE STATUTE MANDATES OF A DI STINCT AUTHORITY CANNOT BE SUBSTITUTED BY THE SATISFACTION OF ANOTHER. SIMILA R VIEW HAS BEEN TAKEN BY THE HONBLE BOMBAY HIGH COURT IN THE CASE OF GHANSHYAM K. KHABRANI VS. ACIT (2012) 346 ITR 443 (BOM.). 3. IN VIEW OF THE ABOVE, THE REASSESSMENT PROCEEDIN GS INITIATED PURSUANT TO SANCTION OBTAINED FROM ANOTHER AUTHORITY WHO WAS NO T COMPETENT TO PROVIDE SO, ARE HELD TO BE INVALID AND CONSEQUENTIAL ADDITIONS PURSUANT TO SUCH REOPENED ASSESSMENT ARE LIABLE TO BE QUASHED. WE ORDER ACCO RDINGLY. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS HER EBY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 03.02.2016. SD/- SD/- (N.K. BILLAIYA) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 03.02.2016. * KISHORE, SR. P.S. ITA NO.4280/M/2012 CAPT. V. VIJAY KUMAR NAIR 3 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.