ACIT, New Delhi V. Sh. Suresh Kumar Gupta, New Delhi

ITA 4950/DEL/2015

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 9263 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 4 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2007-2008
• Appeal Filed On: 31-07-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SANJAY GOEL
• Keywords: Question of law; Tangible material; Accommodation entries; Competent authority; Reassessment proceedings
• Section: 143(3); 147; 68; 148

Judgement Text

PAGE | 1 INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F : NEW DELHI BEFORE SHRI AMIT SHUKLA , JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO.3877 TO 3880/DEL/2015 (ASSESSMENT YEAR: 2004 - 05 TO 2007 - 08 ) SURESH KUMAR GUPTA, 308, ARUNACHAL BUILDING, 19, BARAKHAMBA ROAD, NEW DELHI PAN: AAHPG9563B VS. ACIT, CIRCLE - 22, NEW DELHI (APPELLANT) (RESPONDENT) ITA NO.4947 TO 4950/DEL/2015 (ASSESSMENT YEAR: 2004 - 05 TO 2007 - 08) ACIT, CIRCLE - 22, NEW DELHI VS. SURESH KUMAR GUPTA, 308, ARUNACHAL BUILDING, 19, BARAKHAMBA ROAD, NEW DELHI PAN: AAHPG9563B (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI R .S. SINGHVI, CA REVENUE BY: SHRI SANJAY GOEL, CIT DR DATE OF HEARING 18/12 / 2018 DATE OF PRONOUNCEMENT 2 1 / 12 / 2018 O R D E R PER BENCH 1. TH ESE ARE THE BUNCH OF 8 APPEALS FILED BY THE ASSESSEE AND THE REVENUE FOR ASSESSMENT YEAR 2004 05 TO 2007 - 08 AGAINST THE ORDER OF THE LD COMMISSIONER OF INCOME TAX (APPEALS ) 18, NEW DELHI DATED 31/3/2015 FOR ALL THE ASSESSMENT YEARS. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL IN ITA NO. 3877/DEL/2015 FOR THE ASSESSMENT YEAR 2004 - 05: - 1. THAT THERE IS NO FACTUAL OR LEGAL BASIS IN ASSUMING JURISDICTION U/S 148 AS THERE IS NO CASE OF ANY INCOME ESCAPING ASSESSMENT OR ANY TANGIBLE MATERIAL AND RECORDING OF PROPER SATISFACTION IN THE CONTEXT OF PROVISIONS OF SECTION 148. 2(I) THAT CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE REOP ENING U/S 148 IN ABSENCE OF VALID SANCTION U/S 151(2) OF THE INCOME TAX ACT. PAGE | 2 (II) THAT HAVING ACCEPTED POSITION THAT APPROVAL WAS TAKEN FROM COMMISSIONER OF INCOME TAX WHEREAS IT WAS REQUIRED TO BE TAKEN FROM JOINT/ ADDL. CIT, THERE IS NO CASE OF VALID APP ROVAL AS PER PROVISIONS OF SECTION 151(2) AND SETTLED LEGAL PRINCIPLES. 3. THAT LOWER AUTHORITIES HAVE NOT EVEN CONSIDERED THE CORRECT FIGURE OF NET PREMIUM AS PER DETAILS EXTRACTED FROM LAPTOP. 3. ASSESSEE HAS RAISED IDENTICAL GROUNDS OF APPEAL FOR ASSES SMENT YEAR 2005 06 TO 2007 08. 4. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL IN ITA NO. 4947/DEL/2015 FOR THE ASSESSMENT YEAR 2004 - 05: - 1 THAT THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS. 79,12,95,151/ - MADE BY THE AO ON ACCOUNT OF UN EXPLAINED CASH DEPOSITS ON THE GROUND THAT THE HONBLE SETTLEMENT COMMISSION HAS HELD IN THE CASE OF ASSESSEE FOR THE A.Y. 2008 - 09 THAT THE ASSESSEE IS AN ENTRY OPERATOR COMPLETELY IGNORING THE FACT THAT THE ABOVE FINDING WAS GIVEN BY THE HONBLE SETTLEMEN T COMMISSION ONLY FOR THE A.Y. 2008 - 09 AND NOT FOR THE A.Y. 2006 - 07 AND THE PRINCIPLE OF RES JUDICATA IS NOT APPLICABLE IN THE INCOME TAX PROCEEDING. 2 THAT THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS. 79,12,95,151/ - WITHOUT APPRECIATING THE FACT THAT THE ONUS OF ESTABLISHING THE IDENTITY AND CREDITWORTHINESS OF CREDITORS AND GENUINENESS OF TRANSACTIONS WAS ON THE ASSESSEE AS PER THE PROVISION OF SECTION 68 OF THE INCOME TAX ACT IRRESPECTIVE OF THE FACT WHETHER THE ASSESSEE IS AN ENTRY OPERATOR OR NOT. 3. THAT THE LD. CIT(A) ERRED IN GIVING THE FINDING THAT THE AO HAS MADE THE ADDITION RS. 79,12,95,151/ - IN DISREGARD OF THE REASONS RECORDED BY HIM WHERE HE HAD MENTIONED THE PREMIUM CHARGED ON ACCOMMODATION ENTRIES IS LEGALLY NOT TENABLE AS THE A O CAN ASSESS ANY OTHER INCOME CHARGEABLE TO TAX WHICH COMES TO HIS NOTICE SUBSEQUENTLY IN THE COURSE OF THE PROCEEDING AS PER THE PROVISION OF SECTION 147. 4. THAT THE LD. CIT(A) ERRED IN GIVING THE FINDING THAT THE AO HAS MADE THE ADDITION RS. 79,12,95,15 1/ - DISREGARDING THE ORDER OF THE SETTLEMENT COMMISSION PASSED IN THE CASE OF ASSESSEE FOR THE A.Y. 2006 - 07 AS NO SUCH ORDER OF SETTLEMENT COMMISSION FOR THE A.Y. 2006 - 07 HAS BEEN PASSED. 5. THAT THE LD. CIT(A) ERRED IN DIRECTING THE AO TO VERIFY THE DETAI LS OF PREMIUM CHARGED AND VARIOUS CLAIM OF EXPENSES AND ALLOW THE EXPENSES IN RESPECT OF THE ADDITION OF RS.98,16,153/ - MADE BY THE AO ON ACCOUNT OF PREMIUM/COMMISSION RECEIVED BY THE ASSESSEE ON PROVIDING ACCOMMODATION ENTRIES WHICH TANTAMOUNT TO SET - ASID E OF THE ORDER WHICH THE CIT(A) HAS NO POWER TO MAKE W.E.F. 01.06.2001. 6. THAT THE GROUNDS OF APPEAL ARE WITHOUT PREJUDICE TO EACH OTHER. 7. THE ORDER OF THE CIT(A) IS ERRONEOUS AND IS NOT TENABLE ON FACTS AND IN LAW. PAGE | 3 5. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL IN ITA NO. 4948/DEL/2015 FOR THE ASSESSMENT YEAR 2005 - 06: - 1 THAT THE LD CIT(A) ERRED IN DELETING THE ADDITION OF RS. 86,89,08,987/ - (INCORRECTLY MENTIONED AS RS.79,12,95,151/ - IN THE APPELLATE ORDER) MADE BY THE AO ON ACCOUNT OF UNEXPL AINED CASH DEPOSITS ON THE GROUND THAT THE HONBLE SETTLEMENT COMMISSION HAS HELD IN THE CASE OF ASSESSEE FOR THE A.Y, 2008 - 09 THAT THE ASSESSEE IS AN ENTRY OPERATOR COMPLETELY IGNORING THE FACT THAT THE ABOVE FINDING WAS GIVEN BY THE HONBLE SETTLEMENT CO MMISSION ONLY FOR THE A.Y. 2008 - 09 AND NOT FOR THE A.Y. 2006 - 07 AND THE PRINCIPLE OF RES JUDICATA IS NOT APPLICABLE IN THE INCOME TAX PROCEEDING. 2 THAT THE LD CIT(A) ERRED IN DELETING THE ADDITION OF RS. 86,89,08,987/ - (INCORRECTLY MENTIONED AS RS.79,12,9 5,151/ - IN THE APPELLATE ORDER) WITHOUT APPRECIATING THE FACT THAT THE ONUS OF ESTABLISHING THE IDENTITY AND CREDITWORTHINESS OF CREDITORS AND GENUINENESS OF TRANSACTIONS WAS ON THE ASSESSEE AS PER THE PROVISION OF SECTION 68 OF THE INCOME TAX ACT IRRESPEC TIVE OF THE FACT WHETHER THE ASSESSEE IS AN ENTRY OPERATOR OR NOT. 3 THAT THE LD. CIT(A) ERRED IN GIVING THE FINDING THAT THE AO HAS MADE THE ADDITION RS. 86,89,08,987/ - (INCORRECTLY MENTIONED AS RS.79,12,95,151/ - IN THE APPELLATE ORDER) IN DISREGARD OF THE REASONS RECORDED BY HIM WHERE HE HAD MENTIONED THE PREMIUM CHARGED ON ACCOMMODATION ENTRIES IS LEGALLY NOT TENABLE AS THE AO CAN ASSESS ANY OTHER INCOME CHARGEABLE TO TAX WHICH COMES TO HIS NOTICE SUBSEQUENTLY IN THE COURSE OF THE PROCEEDING AS PER TH E PROVISION OF SECTION 147. 4. THAT THE LD. CIT(A) ERRED IN GIVING THE FINDING THAT THE AO HAS MADE THE ADDITION RS. 86,89,08,987/ - (INCORRECTLY MENTIONED AS RS.79,12,95,151 / - IN THE APPELLATE ORDER) DISREGARDING THE ORDER OF THE SETTLEMENT COMMISSION PASSED IN THE CASE OF ASSESSEE FOR THE A.Y. 2006 - 07 AS NO SUCH ORDER OF SETTLEMENT COMMISSION FOR THE A.Y. 2006 - 07 HAS BEEN PASSED. 5. THAT THE LD. CIT(A) ERRED IN DIRECTING THE AO TO VERIFY THE DETAILS OF PREMIUM CHARGED AND VARIOUS CLAIM OF EXPENSES AND ALLOW THE EXPENSES IN RESPECT OF THE ADDITION OF RS.2,22,98,930/ - (INCORRECTLY MENTIONED AS RS.98,16,153/ - IN THE APPELLATE ORDER) MADE BY THE AO ON ACCOUNT OF PREMIUM/COMMISSIO N RECEIVED BY THE ASSESSEE ON PROVIDING ACCOMMODATION ENTRIES WHICH TANTAMOUNT TO SET - ASIDE OF THE ORDER WHICH THE CIT(A) HAS NO POWER TO MAKE W.E.F. 01.06.2001 6. THAT THE GROUNDS OF APPEAL ARE WITHOUT PREJUDICE TO EACH OTHER. 7 THE ORDER OF THE CIT(A) IS ERRONEOUS AND IS NOT TENABLE ON FACTS AND IN LAW. 6. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL IN ITA NO. 4949/DEL/2015 FOR THE ASSESSMENT YEAR 2006 - 07: - 1. THAT THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS. 1,13,08,52,495/ - (INCORRECT LY MENTIONED AS RS.79,12,95,151/ - IN THE APPELLATE ORDER) MADE BY THE AO ON ACCOUNT OF UNEXPLAINED CASH PAGE | 4 DEPOSITS ON THE GROUND THAT THE HONBLE SETTLEMENT COMMISSION HAS HELD IN THE CASE OF ASSESSEE FOR THE A.Y. 2008 - 09 THAT THE ASSESSEE IS AN ENTRY OPERAT OR COMPLETELY IGNORING THE FACT THAT THE ABOVE FINDING WAS GIVEN BY THE HONBLE SETTLEMENT COMMISSION ONLY FOR THE A.Y. 2008 - 09 AND NOT FOR THE A.Y. 2006 - 07 AND THE PRINCIPLE OF RES JUDICATA IS NOT APPLICABLE IN THE INCOME TAX PROCEEDING. 2 THAT THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS. 1,13,08,52,495/ - (INCORRECTLY MENTIONED AS RS.79,12,95,151/ - IN THE APPELLATE ORDER) WITHOUT APPRECIATING THE FACT THAT THE ONUS OF ESTABLISHING THE IDENTITY AND CREDITWORTHINESS OF CREDITORS AND GENUINENESS OF TRANSACTIONS WAS ON THE ASSESSEE AS PER THE PROVISION OF SECTION 68 OF THE INCOME TAX ACT IRRESPECTIVE OF THE FACT WHETHER THE ASSESSEE IS AN ENTRY OPERATOR OR NOT. 3. THAT THE LD. CIT(A) ERRED IN GIVING THE FINDING THAT THE AO HAS MADE THE ADDITION RS. 1,13,08,52,495/ - (INCORRECTLY MENTIONED AS RS.79,12,95,151/ - IN THE APPELLATE ORDER) IN DISREGARD OF THE REASONS RECORDED BY HIM WHERE HE HAD MENTIONED THE PREMIUM CHARGED ON ACCOMMODATION ENTRIES IS LEGALLY NOT TENABLE AS THE AO CAN ASSESS ANY OTHER INCOM E CHARGEABLE TO TAX WHICH COMES TO HIS NOTICE SUBSEQUENTLY IN THE COURSE OF THE PROCEEDING AS PER THE PROVISION OF SECTION 147. 4. THAT THE LD. CIT(A) ERRED IN GIVING THE FINDING THAT THE AO HAS MADE THE ADDITION RS. 1,13,08,52,495/ - (INCORRECTLY MENTIONED AS RS.79,12,95,151/ - IN THE APPELLATE ORDER) DISREGARDING THE ORDER OF THE SETTLEMENT COMMISSION PASSED IN THE CASE OF ASSESSEE FOR THE A.Y. 2006 - 07 AS NO SUCH ORDER OF SETTLEMENT COMMISSION FOR THE A.Y. 2006 - 07 HAS BEEN PASSED. 5. THAT THE LD. CIT(A) ERR ED IN DIRECTING THE AO TO VERIFY THE DETAILS OF PREMIUM CHARGED AND VARIOUS CLAIM OF EXPENSES AND ALLOW THE EXPENSES IN RESPECT OF THE ADDITION OF RS.3,39,31,612/ - (INCORRECTLY MENTIONED AS RS.98,16,153/ - IN THE APPELLATE ORDER) MADE BY THE AO ON ACCOUNT O F PREMIUM/COMMISSION RECEIVED BY THE ASSESSEE ON PROVIDING ACCOMMODATION ENTRIES WHICH TANTAMOUNT TO SET - ASIDE OF THE ORDER WHICH THE CIT(A) HAS NO POWER TO MAKE W.E.F. 01.06.2001. 6. THAT THE GROUNDS OF APPEAL ARE WITHOUT PREJUDICE TO EACH OTHER. 7. THE O RDER OF THE CIT(A) IS ERRONEOUS AND IS NOT TENABLE ON FACTS AND IN LAW. 7. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL IN ITA NO. 4950/DEL/2015 FOR THE ASSESSMENT YEAR 2007 - 08: - 1. THAT THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS. 1,23,82 ,07,306/ - (INCORRECTLY MENTIONED AS RS.79,12,95,151/ - IN THE APPELLATE ORDER) MADE BY THE AO ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS ON THE GROUND THAT THE HONBLE SETTLEMENT COMMISSION HAS HELD IN THE CASE OF ASSESSEE FOR THE A.Y. 2008 - 09 THAT THE ASSESSE E IS AN ENTRY OPERATOR COMPLETELY IGNORING THE FACT THAT THE ABOVE FINDING WAS GIVEN BY THE HONBLE SETTLEMENT COMMISSION ONLY FOR THE A.Y. 2008 - 09 AND NOT FOR THE A.Y. 2006 - 07 AND THE PRINCIPLE OF RES JUDICATA IS NOT APPLICABLE IN THE INCOME TAX PROCEEDIN G. PAGE | 5 2. THAT THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS. 1,23,82,07,306/ - (INCORRECTLY MENTIONED AS RS.79,12,95,151/ - IN THE APPELLATE ORDER) WITHOUT APPRECIATING THE FACT THAT THE ONUS OF ESTABLISHING THE IDENTITY AND CREDITWORTHINESS OF CREDITORS AND GENUINENESS OF TRANSACTIONS WAS ON THE ASSESSEE AS PER THE PROVISION OF SECTION 68 OF THE INCOME TAX ACT IRRESPECTIVE OF THE FACT WHETHER THE ASSESSEE IS AN ENTRY OPERATOR OR NOT. 3. THAT THE LD. CIT(A) ERRED IN GIVING THE FINDING THAT THE AO HAS MA DE THE ADDITION RS. 1,23,82,07,306/ - (INCORRECTLY MENTIONED AS RS.79,12,95,151/ - IN THE APPELLATE ORDER) IN DISREGARD OF THE REASONS RECORDED BY HIM WHERE HE HAD MENTIONED THE PREMIUM CHARGED ON ACCOMMODATION ENTRIES IS LEGALLY NOT TENABLE AS THE AO CAN AS SESS ANY OTHER INCOME CHARGEABLE TO TAX WHICH COMES TO HIS NOTICE SUBSEQUENTLY IN THE COURSE OF THE PROCEEDING AS PER THE PROVISION OF SECTION 147. 4. THAT THE LD. CIT(A) ERRED IN GIVING THE FINDING THAT THE AO HAS MADE THE ADDITION RS. 1,23,82,07,306/ - (INCORRECTLY MENTIONED AS RS.79,12,95,151/ - IN THE APPELLATE ORDER) DISREGARDING THE ORDER OF THE SETTLEMENT COMMISSION PASSED IN THE CASE OF ASSESSEE FO R THE A.Y. 2006 - 07 AS NO SUCH ORDER OF SETTLEMENT COMMISSION FOR THE A.Y. 2006 - 07 HAS BEEN PASSED. 5. THAT THE LD. CIT(A) ERRED IN DIRECTING THE AO TO VERIFY THE DETAILS OF PREMIUM CHARGED AND VARIOUS CLAIM OF EXPENSES AND ALLOW THE EXPENSES IN RESPECT OF THE ADDITION OF RS.2,97,04,523/ - (INCORRECTLY MENTIONED AS RS.98,16,153/ - IN THE APPELLATE ORDER) MADE BY THE AO ON ACCOUNT OF PREMIUM/COMMISSION RECEIVED BY THE ASSESSEE ON PROVIDING ACCOMMODATION ENTRIES WHICH TANTAMOUNT TO SET - ASIDE OF THE ORDER WHICH T HE CIT(A) HAS NO POWER TO MAKE W.E.F. 01.06.2001. 6. THAT THE GROUNDS OF APPEAL ARE WITHOUT PREJUDICE TO EACH OTHER. 8. BRIEF FACTS OF THE CASE ARE CULLED OUT FROM ASSESSMENT YEAR 2004 05 . O RDERS SHOWS THAT SURVEY UNDER SECTION 133A, WAS CONDUCTED ON 20/11 /2007 IN CASE OF SHRI SK GUPTA AND THE COMPANIES OPERATED BY HIM. SRI. SK GUPTA IS A CHARTERED ACCOUNTANT, BUT HE IS FOUND TO HAVE BEEN INDULGED IN PROVIDING ACCOMMODATION ENTRIES TO THE DIFFERENT PARTIES THROUGH THE BANK ACCOUNTS OPERATED BY HIM IN THE NAME OF DIFFERENT COMPANIES, INDIVIDUALS AND OTHERS REPORTED TO BE MORE THAN 30 IN NUMBER. AS PER THE PRINTOUT TAKEN FROM THE LAPTOP OF THE ASSESSEE IMPOUNDED DURING THE SURVEY OPERATION THE PREMIUM HAS BEEN CHARGED AT THE RATE OF VARYING FROM 0.8% TO 4% FROM THE PERSONS TO WHOM ACCOMMODATION ENTRIES HAVE BEEN PROVIDED. AS PER THE COMPUTATION MADE FROM THE IMPOUNDED DOCUMENTS, IT WAS NOTED THAT SRI. SK GUPTA HAS RECEIVED GROSS PREMIUM OF INR 121806 208/ - FOR THE PERIOD RELEVANT TO ASSESSMENT YEAR 2004 05 TO 2008 09. PAGE | 6 9. THE ASSESSEE HAS FILED THE RETURNS OF INCOME FOR THE RELEVANT ASSESSMENT YEARS AND THEY HAVE BEEN DEALT WITH BY THE REVENUE FOR RESPECTIVE ASSESSMENT YEARS AS UNDER: - SERIAL NUMBER A.Y. RETURNED INCOME ASSESSED INCOME ASSESSED UNDER SECTI ON 1 2004 05 450313 450313 143 (1) 2 2005 06 855600 855600 143 (1) 3 2006 07 945320 945320 143 (3) 4 2007 08 747140 747140 143 (1) 5 2008 09 1290300 1290300 143 (1) 10. AS PER THE VARIOUS ENQUIRIES CARRIED OUT BY THE INVESTIGATION WING ASSESSEE WAS FOUND TO HAVING USED THE BANK ACCOUNT OPENED IN DIFFERENT BANKS TO THE ENTRIES THROUGH 3 OR 4 ACCOUNTS TO GIVE GENUINE LOOK TO THE TRANSACTION. T HE LEARNED ASSESSING OFFICER N OTED THAT THERE ARE 33 ENTITIES WHOSE BANK ACCOUNTS HAVE BEEN OPERATED BY SRI SK GUPTA. THE STATEMENT WAS ALSO RECORDED ON 26/12/2008 OF SHRI SK GUPTA, WHEREIN HE IS ADMITTED THE ABOVE ACT. THE AFFIDAVIT OF THE DIRECTORS OF THOSE COMPANIES WHO HAVE ADMIT TED THAT THEY WERE APPOINTED AS DIRECTORS OF THE COMPANY AT THE INSTANCE OF SRI SK GUPTA AND ALL THE OPERATIONS OF THE COMPANY INCLUDING THE BANK ACCOUNTS WERE OPERATED BY THEM AS PER THE DIRECTION OF SRI SK GUPTA. FROM THE ABOVE FACTS, THE LEARNED ASSES SING OFFICER NOTED THAT THE AMOUNT OF PREMIUM ON FOR THE ASSESSMENT YE AR 2004 05 IS INR 9816153/ - . THEREFORE, REASSESSMENT PROCEEDINGS WERE INITIATED AFTER RECORDING REASONS UNDER SECTION 148 OF THE INCOME TAX ACT. THE LEARNED AO NOTED THAT ACCORDINGLY NOTICE UNDER SECTION 148 OF THE INCOME TAX ACT WAS ISSUED ON 25/8/2010 TO THE ASSESSEE AFTER OBTAINING PRIOR APPROVAL UNDER SECTION 151 (1) OF THE ACT FROM THE CIT (CENTRAL) III NEW DELHI VIDE LETTER F. NUMBER CIT (CENTRAL) III/JUDL/2010 11/994, D ATED 19/8/2010. SIMILAR NOTICES HAVE BEEN ISSUED FOR ASSESSMENT YEAR 2005 06 TO 2007 08 AND SIMILAR SANCTIONS HAVE BEEN OBTAINED . BASED ON THE ABOVE FACTS, THE REASSESSMENT PROCEEDINGS WERE INITIATED, WHICH CULMINATED INTO THE ASSESSMENT UNDER PAGE | 7 SECTIO N 143 (3 ) READ WITH SECTION 148 OF THE INCOME TAX ACT, WHERE THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED AT INR 80 1561617/ . THE LEARNED AO MADE AN ADDITION OF INR 7 91295151/ ON ACCOUNT OF CASH DEPOSITED IN THE VARIOUS BANK ACCOUNT UNDER SECTION 68 OF THE INCOME TAX ACT. A FURTHER ADDITION OF INR 9 816153/ WAS ALSO MADE ON ACCOUNT OF THE PREMIUM RECEIVED BY THE ASSESSEE DURING THE YEAR. SUCH ASSESSMENT ORDER WAS PASSED ON 30/12/2011. 11. THE ABOVE ORDER WAS CHALLENGED BY THE ASSESSEE BEFORE THE COMMI SSIONER OF INCOME TAX APPEALS. THE ASSESSEE CHALLENGED THE SAME ON THE GROUND OF JURISDICTION UNDER SECTION 148 OF THE INCOME TAX ACT, AS WELL AS APPROVAL UNDER SECTION 151 OF THE INCOME TAX ACT AS WELL AS ON THE QUANTUM. THE LEARNED CIT A , UPHELD THE ACTION UNDER SECTION 148 OF THE INCOME TAX ACT VIDE PARA NUMBER 2.3 OF HIS ORDER. WITH RESPECT TO THE OBJECTION TO THE APPROVAL OF THE ADDITIONAL COMMISSIONER OF INCOME TAX UNDER SECTION 151 (1) OF THE ACT , HE FURTHER HELD THAT THOUGH THE APPROVAL OF THE ADDITIONAL COMMISSIONER WAS NOT TAKEN UNDER SECTION 151 (1) OF THE ACT BUT OF CIT (CENTRAL), CIRCLE III, NEW DELHI IS OF NO RELEVANCE OF SIGNIFICANCE. HE FURTHER STATED THAT EVEN THOUGH THE APPROVAL IS REQUIRED TO BE OBTAINED FROM ADDITIONAL COMMISSI ONER BUT THE APPROVAL OBTAINED FROM THE COMMISSIONER WILL NOT PREJUDICE THE CASE OF THE REVENUE AS THE EXISTENCE OF APPROVAL IS NOT IN DISPUTE. THEREFORE, HE ALSO DISMISSED THE GRO U ND FOR APPROVAL GRANTED BY THE COMMISSIONER OF INCOME TAX INSTEAD OF ADDIT IONAL COMMISSIONER OF INCOME TAX. ACCORDINGLY, HE HELD THAT REOPENING OF THE CASE, AS WELL AS THE APPROVAL IS IN ORDER. ON THE MERITS OF THE CASE , HE DELETED THE ADDITION OF INR 7 91295151/ HOLDING THAT VARIOUS ENTRIES THROUGH CONDUIT ENTITIES ARE PART OF ACCOMMODATION ENTRIES PARTICULARLY WHEN THE ASSESSING OFFICER HIMSELF H AS RECORDED THE REASONS FOR UNDISCLOSED INCOME ONLY IN RESPECT OF PREMIUM CHARGED FOR PROVIDING THIS ACCOMMODATION ENTRIES. WITH RESPECT TO THE PREMIUM CHARGED (COMMISSION EAR NED), HE HELD THAT THERE IS A MERIT IN THE LEGAL OBJECTION OF THE APPELLANT THAT THE DETAILS OF PREMIUM CHARGED HAVE BEEN TAKEN FROM THE LAPTOP OF THE ASSESSEE IMPOUNDED DURING THE SURVEY OPERATIONS AND THE BENEFIT OF VARIOUS EXPENSES AS PER THE SAME LAPTOP SHO ULD BE CONSIDERED WHILE WORKING OUT THE UNDISCLOSED INCOME. HE FURTHER REFERRED TO A CHART PLACED ON RECORD BY THE APPELLANT SHOWING VARIOUS PAGE | 8 EXPENSES INCURRED. HE THEREFORE DIRECTED THE LEARNED AO TO VERIFY THE DETAILS OF PREMIUM CHARGED. IN VARIOUS CLA IM OF EXPENSES AND TO RECOMPUTE THE UNDISCLOSED INCOME. 12. AGGRIEVED BY THE ORDER OF THE LEARNED CIT A, THE ASSESSEE HAS CHALLENGED THE ORDERS FOR ALL THESE YEARS STATING THAT THE APPROVAL HAS BEEN GRANTED BY THE LEARNED COMMISSIONER OF INCOME TAX INSTEAD O F ADDITIONAL COMMISSIONER OF INCOME TAX AND THEREFORE THE ORDERS PASSED ARE UNSUSTAINABLE IN LAW. FURTHER, THE REVENUE IS AGGRIEVED WITH THE DIRECTION OF THE LEARNED CIT A, ON DELETING THE ADDITION OF CASH DEPOSIT IN THE BANK ACCOUNT AND FURTHER THE DIR ECTION TO THE ASSESSING OFFICER TO COMPUTE THE COMMISSION EARNED BY THE ASSESSEE AFTER GRANTING DEDUCTION OF THE EXPENSES. 13. NOW WE 1 ST COME TO THE APPEAL OF THE ASSESSEE WHERE THE ASSESSEE HAS CHALLENGED BY GROUND NUMBER 1, THE REOPENING OF THE ASSESSMENT A ND RECORDING OF THE PROPER SATISFACTION. THE GROUND NUMBER 2 IS WITH RESPECT TO THE REOPENING UNDER SECTION 148 IS NOT JUSTIFIED IN VIEW OF ABSENCE OF VALID SANCTION UNDER SECTION 151 (2) OF THE INCOME TAX ACT. THE LEARNED AUTHORISED REPRESENTATIVE SUBMITT ED A PAPER BOOK STATING THAT THE REASONS RECORDED ARE PLACED AT PAGE NUMBER 1 4 OF THE PAPER BOOK WHERE AS THE COPY OF THE LETTER COMMUNICATING APPROVAL UNDER SECTION 151 OF THE INCOME TAX ACT IS PLACED AT PAGE NUMBER 5 OF THE PAPER BOOK. IT WAS SUBMITT ED THAT THE SANCTION FOR THE APPROVAL HAS BEEN GRANTED BY THE COMMISSIONER OF INCOME TAX (CENTRAL) III, NEW DELHI V IDE LETTER DATED 19/8/2010 FOR ASSESSMENT YEAR 2004 05 TO 2007 - 08 WHERE THE ORIGINAL RETURN FILED WAS ACCEPTED UNDER SECTION 143 (1) OF THE ACT. HE FURTHER REFERRED TO PARA NUMBER 2.4 OF THE ASSESSMENT ORDER AND STATED THAT NOTICE UNDER SECTION 148 OF THE INCOME TAX ACT WAS ISSUED ON 25/8/2010 TO THE ASSESSEE AFTER OBT AINING APPROVAL UNDER SECTION 151 (1) OF THE ACT FROM CIT ON 19/8/2010. HE FURTHER REFERRED TO THE PROVISIONS OF SECTION 151 OF THE INCOME TAX ACT PREVAILING AS ON THAT DATE AND SUBMITTED THAT WHERE THE ASSESSMENT UNDER SECTION 143 (3) OR SECTION 147 HAS BEEN MADE FOR THE RELEVANT ASSESSMENT YEAR, NO NOTICE BE ISSUED UNDER SECTION 148 BY THE ASSESSING OFFICER WHO IS BELOW THE RANK OF ASSISTANT COMMISSIONER OF DEPUTY COMMISSIONER, UNLESS THE JOINT COMMISSIONER IS SATISFIED ON THE REASONS RECORDED BY SUCH AS SESSING OFFICER THAT IT IS A FIT CASE FOR THE ISSUE OF SUCH NOTICE. HE FURTHER PAGE | 9 STATED THAT THE AFTER THE EXPIRY OF 4 YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR, NO SUCH NOTICE SHALL BE ISSUED UNLESS THE PRINCIPAL COMMISSIONER CHIEF COMMISSIONER OR PRINCIPAL COMMISSIONER OR COMMISSIONER SATISFIED, ON THE REASONS RECORDED BY THE ASSESSING OFFICER AFORESAID, THAT IT IS A FIT CASE FOR THE ISSUE OF SUCH NOTICE. HE FURTHER STATED THAT THE LEARNED ASSESSING OFFICER HIMSELF H AS MENTIONED IN PARAGRAPH NUMB ER 2 OF THE ORDER THAT ASSESSMENT UNDER SECTION 2004 05, 2005 06, 2007 08 AND 2008 09 ARE UNDER SECTION 143 (1) OF THE ACT AND ONLY ASSESSMENT YEAR 2006 07 IS ASSESSED UNDER SECTION 143 (3) OF THE ACT. HE THEREFORE SUBMITTED THAT IN ANY OTHER CA SE, THE NOTICE SHALL BE ISSUED AFTER THE EXPIRY OF 4 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. THEREF ORE, HE IS ARGUMENT WAS THAT THAT FOR ASSESSMENT YEAR 2004 05, 2005 - 06 , 2007 08 AND 2008 09 AS THE ASSESSMENT SO BEEN COMPLETED UNDER SECTION 143 (1) OF THE ACT. SANCTION SHOULD HAVE BE EN OBTAINED FROM JOINT COMMISSIONER OF INCOME TAX, WHEREAS SAME HAS BEEN OBTAINED FROM THE COMMISSIONER OF INCOME TAX. HE STATED THAT THE ONLY ASSESSMENT YEAR IS 2006 07 WHERE THE ASSESSMENT HAS BEEN MADE UNDER SECTION 143 (3) OF THE ACT. IN THAT CASE TO THE NOTICE HAS BEEN ISSUED WITHIN 4 YEARS FROM THE END OF TH E ASSESSMENT YEAR AND THEREFORE THE SANCTION SHOULD HAVE ALSO BEEN OBTAINED FROM THE JOINT COMMISSIONER. THEREFORE, HE SUBMITTED THAT SANCTION OBTAINED BY THE LEARNED ASSESSING OFFICER IS INCORRECT. HE FURTHER RELIED UPON THE DECISION OF THE HONOURABLE D ELHI HIGH COURT IN CASE OF CIT 8 VS SOYUZ INDUSTRIAL RESOURCES LTD 58 TAXMANN.COM 336 (DELHI) FOR THE ABOVE PROPOSITION. 14. WITH RESPECT TO THE APPEAL OF THE REVENUE IS SUBMITTED THAT FOR ASSESSMENT YEAR 2008 09 ON IDENTICAL FACTS AND CIRCUMSTANCES OF THE VARIOUS COMPANIES OPERATED BY SRI SK GUPTA, THE COORDINATE BENCH HAS HELD THAT WHEN THERE IS AN ORDER OF SETTLEMENT COMMISSION AS WELL AS ADDITIONAL COMMISSIONER OF INCOME TAX UNDER SECTION 144A, HAS HELD THAT SRI. SK GUPTA WAS PROVIDING ACCOMMODATION EN TRIES, HE USED VARIOUS COMPANIES HAS CONTINUED FOR PROVIDING ACCOMMODATION ENTRIES, CASH WAS RECEIVED THROUGH MEDIATORS FROM THE PERSONS WHO WANTED TO AVAIL THE PAGE | 10 ACCOMMODATION ENTRIES, SUCH CASE WAS DEPOSITED IN THE BANK ACCOUNT OF THE CONDUIT COMPANIES AND THEREAFTER, CHEQUE OF THE SIMILAR AMOUNT WAS BEING ISSUED TO THE BENEFICIARIES, THE PERSONS WHO WANTED TO AVAIL THE ACCOMMODATION ENTRY BRACKET OR WITHIN A DAY OR SO. THE ASSESSING OFFICER HIMSELF IN THE ASSESSMENT ORDER HAS ACCEPTED T HESE FACTS. CONSID ERING THE TOTALITY OF THE FACTS AND LOGICAL CONSEQUENCES OF THE ORDER OF THE SETTLEMENT COMMISSION AS WELL AS ADDITIONAL CIT UNDER SECTION 144A OF THE ACT , THE COORDINATE BENCH HAS HELD THAT THE ADDITION UNDER SECTION 68 CANNOT BE MADE IN THE CASE OF THE CONDUIT COMPANIES. SUCH ADDITION WAS DELETED. HE THEREFORE SUBMITTED THAT EVEN OTHERWISE, ON THE MERITS OF THE CASE, THE ISSUE IS SOLELY COVERED IN FAVOUR OF THE ASSESSEE. 15. THE LEARNED CIT DR ON THE ISSUE OF REOPENING AND SANCTION OF THE NOTICE UNDER SEC TION 148 OF THE INCOME TAX ACT HAS STRONGLY RELIED UPON THE ORDER OF THE LOWER AUTHORITIES. ON THE ISSU E OF THE MERITS OF THE ADDITION, IT WAS STATED THAT ADDITION UNDER SECTION 68 OF THE INCOME TAX ACT HAS BEEN CORRECTLY MADE BY THE LEARNED ASSESSING O FFICER IN THE HANDS OF THE ASSESSEE. HE SUBMITTED A NOTE RELYING ON THE SEVERAL JUDICIAL PRECEDENT FOR THAT ASPECT. 16. WE 1 ST DEAL WITH THE APPEAL OF THE ASSESSEE WITH RESPECT TO THE SANCTION GRANTED BY THE LEARNED CIT UNDER SECTION 151 OF THE INCOME TAX ACT . ACCORDING TO THE PROVISIONS OF SECTION 151 WHICH PROVIDES AS UNDER: '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 COMMISSIONE R 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 SUCH NOTICE SHALL BE ISSUED UNLESS THE PRIN CIPAL 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 U NDER 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 TH E 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 PAGE | 11 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.' 17. THE RELEVANT EXTRACTS OF THE VARIOUS ASSESSMENT YEAR ABOUT THE ASSESSMENT ARE AS UNDER: - S R A.Y. RETURNED INCOME ASSESSE D INCOME ASSESSED UNDER SECTION DATE OF ISSUE OF NOTICE SANCTIO N OBTAINE D BY REFEREN CE OF SANCTIO N MENTIO NED BY AO SANCTIO N SHOULD HAVE BEEN OBTAINED BY 1 2004 05 450313 450313 143 (1) 25/8/10 CIT PARA NO 2.4 OF THE ORDER JOINT CIT 2 2005 06 855600 855600 143 (1) 25/8/201 0 CIT PARA NO 2.4 OF THE ORDER JOINT CIT 3 2006 07 945320 945320 143 (3) 25/8/201 0 CIT PARA NO 2.4 OF THE ORDER JOINT CIT 4 2007 08 747140 747140 143 (1) 25/8/201 0 CIT PARA NO 2.4 OF THE ORDER JOINT CIT 18. FROM THE ABOUT TABLE IT IS APPARENT THAT THE LEARNED ASSESSING OFFICER HAS OBTAINED THE SANCTION BY THE LEARNED CIT WHEREAS THE SANCTION SHOULD HAVE BEEN OBTAINED OF JOINT COMMISSIONER OF INCOME TAX. IDENTICAL ISSUE AROSE BEFORE THE HONOURABLE DELHI HIGH COURT IN CASE OF CIT VS SOYUZ INDUSTRIAL RESOURCES LTD 58 TAXMANN.COM 336 WHEREIN THE HONOURABLE HIGH COURT HELD AS UNDER: - 2. THE BRIEF FACTS OF THE CASE ARE THAT FOR ASSESSMENT YEAR (AY) 2002 - 03, THE ASSESSEE HAD FILED ITS RETURNS IN A NORMAL COURSE ON 16.10.2002. THE ASSESSMENT WAS FRAMED UNDER SECTION 143(1). BASED UPON INFORMATION RECEIVED BY THE ASSESSING OFFICER (AO), PAGE | 12 A SA TISFACTION NOTE WAS RECORDED SOMETIME IN EARLY 2009 AND A NOTICE WAS ISSUED IN 2009 I.E. FOUR YEARS BEYOND THE END OF THE ASSESSMENT YEAR, UNDER PROVISO TO SECTION 147(1). THE RE - ASSESSMENT PROCEEDINGS WERE COMPLETED ON 31.12.2009. THE ASSESSEE IN ITS APPE AL URGED THAT THE NOTICE UNDER SECTION 147 WAS UNSUSTAINABLE FOR THE REASON IT WAS NOT APPROVED BY THE COMPETENT AUTHORITY IN ACCORDANCE WITH SECTION 151 OF THE ACT. THIS ARGUMENT ULTIMATELY FOUND FAVOUR WITH THE ITAT WHICH, INTER ALIA, HELD AS FOLLOWS: ' 8. WE HAVE HEARD RIVAL SUBMISSION AND PERUSED THE MATERIAL ON RECORD. IN THE INSTANT CASE ADMITTEDLY, NEITHER ASSESSMENT U/S 143 (3) NOR U/S 147 WAS COMPLETED PRIOR TO ISSUANCE OF NOTICE U/S 148 OF THE ACT. THE NOTICE U/S 148 OF THE ACT WAS ISSUED ON 25.3. 2009 I.E. FOUR YEARS BEYOND THE END OF THE ASSESSMENT YEAR. THEREFORE U/S 151 (2) OF THE ACT IS APPLICABLE TO THE FACTS OF INSTANT CASE SECTION 151(2) OF THE ACT READ AS UNDER : '(2) IN A CASE OTHER THAN A CASE FALLING UNDER SUB - SECTION (1), NO NOTICE SHA LL 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 AS SESSING OFFICER, THAT IT IS A FIT CASE FOR THE ISSUE OF SUCH NOTICE.' 8.1. HENCE THE SANCTIONING AUTHORITY AS PER SECTION 151(2) OF THE ACT FOR ISSUANCE OF NOTICE U/S 148 OUGHT TO HAVE BEEN THE JOINT COMMISSIONER OF INCOME TAX. HOWEVER ON PERUSAL OF THE AS SESSMENT RECORDS WHICH WAS PLACED BEFORE US, IT IS CLEAR THAT THE SANCTION FOR ISSUANCE OF NOTICE U/S 148 WAS GRANTED BY THE COMMISSIONER OF INCOME TAX. A COPY OF THE REASON RECORDED FOR REOPENING THE ASSESSMENT IS PLACED AT PAGE 26 OF THE PAPER BOOK FILED BY THE ASSESSEE ON 7.9.2010. THE LD. DR'S CONTENTION IS THAT ASSESSEE DID NOT RAISE ANY OBJECTION BEFORE THE AO ON THIS ISSUE. THE CONTENTION OF THE LD. DR IS THAT ONCE THE ASSESSEE SUBMITS TO THE JURISDICTION TO THE AO THEN SUBSEQUENTLY OBJECTION WITH RE FERENCE TO JURISDICTION CANNOT BE RAISED. THE SANCTION BY COMPETENT AUTHORITY, AS MENTIONED IN SECTION 151 ONLY CAN ASSIGN PROPER JURISDICTION TO THE ASSESSING OFFICER AND IF SUCH SANCTION WAS NOT OBTAINED, THE ASSESSING OFFICER LACKED THE JURISDICTION TO COMPLETE THE REASSESSMENT PROCEEDINGS. WHEN THE LEGISLATURE HAS SPECIFICALLY ASSIGNED JURISDICTION TO A PARTICULAR AUTHORITY UNDER THE ACT TO GRANT SANCTION THEN, IF ALL OTHER CONDITIONS ARE FULFILLED, THE SANCTION HAS TO BE GRANTED BY THAT VERY AUTHORITY. THIS FUNCTION CANNOT BE DELEGATED TO ANY OTHER AUTHORITY. IT IS THE LEGAL DUTY CAST UPON THAT AUTHORITY TO PERFORM THE SAID FUNCTION. IF THAT AUTHORITY FAILS IN PERFORMING HIS LEGAL FUNCTIONS AND THE SAME IS PERFORMED BY THE OTHER AUTHORITY THEN IT GOES T O THE VERY ROOT OF PROPER ASSUMPTION OR JURISDICTION BY THE AUTHORITY WHICH WAS REQUIRED TO TAKE THAT SANCTION. THIS IS A PURELY LEGAL ISSUE AND CAN BE RAISED AT ANY STAGE OF PROCEEDING.' PAGE | 13 3. DURING THE COURSE OF THE CONTENTIONS, THE REVENUE HAD ARGUED THAT EVEN OTHERWISE SECTION 292B OF THE ACT PRECLUDED THE ASSESSEE'S OBJECTION AS TO THE JURISDICTIONAL INFIRMITY OF THE NOTICE. THIS WAS REPELLED BY THE ITAT ITSELF. IT RELIED UPON A DIVISION B ENCH RULING IN CIT V. S.P.L'S SIDDHARTHA LTD. [2012] 345 ITR 223/204 TAXMAN 115 (MAG.)/17 TAXMANN.COM 138 (DELHI) . 4. THE REVENUE CONTENDS THAT THE ITAT FELL INTO ERROR AND RELIES UPON THE PROVISO TO SECTION 151(1) TO SAY THAT IN ALL CASES WHERE RE - ASSESSMENT IS PROPOSED, THE APPROVAL OF THE HIGHEST AUTHORITIES SUCH AS THE PRINCIPAL CHIEF COMMISSIONER, PRINCIPAL COMMISSIONER OR THE COMMISSIONER, IS ESSENTIAL AND THAT IN THE FACTS OF THIS CASE SUCH AUTHORIZATION HAD, IN FACT, BEEN SECURED PRIOR TO ISSUANCE OF NOTICE. 5. SECTION 151 READS AS FOLLOWS: '151. SANCTION FOR ISSUE OF NOTICE . (1) IN A CASE WHERE AN ASSESSMENT UNDER SUB - SECTION (3) OF SECTION 143 OR SECTION 147 HAS B EEN 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 SU CH 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 SUCH NOTICE SHALL BE ISSUED UNLESS THE CHIEF 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 BELO W 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 .' 6. A PLAIN TEXTUAL ANALYSIS OF THE ABOVE PROVISIONS WOULD INDICATE THE FOLLOWING: ( I ) WHERE THE ORIGINAL ASSESSMENT IS A RESULT OF SCRUTINY ASSESSMENT [SECTION 143(3)] OR MADE IN THE COURSE OF RE - ASSESSMENT PROCEEDINGS (SECTION 147) - BUT WITHIN THE INITIAL PERIOD, SECTION 151(1) APPLIES. THE COMPETENT AUTHORITY WOULD THEN BE THE JOINT PAGE | 14 COMMISSIONER; ( II ) IN THE SAME FACT SITUATION, IN CASE THE NOTICE IS SOUGHT TO BE ISSUED UNDER SECTION 147 AND THE PROVISO TO SECTION 147(1) I.E. BEYOND THE EXTENDED FOUR - YEAR PERIOD, THE COMPETENT AUTHORITY FOR PRIOR APPROVAL TO THE PROPOSAL WOULD BE THE PRINCIPAL CHIEF COMMISSIONER, OR CHIEF COMMISSIONER OR PRINCIPAL COMMISSIONER OR COMMISSIONER; ( III ) IN CASE THE ORIGINAL ASSESSMENT IS COMPLETED 'OTHER THAN' I.E . OTHERWISE THAN UNDER SECTION 143(3) OR DURING THE COURSE OF REASSESSMENT PROCEEDINGS, COMPETENT AUTHORITY WOULD BE THE JOINT COMMISSIONER. 7. THE ITAT EXAMINED THE APPLICABILITY OF SECTION 292B BASED UPON THE DECISION IN S.P.L'S SIDDHARTHA LTD. ( SUPRA ), WHICH REJECTED THE REVENUE'S CONTENTION ABOUT ITS APPLICATION HOLDING THAT WHERE A JURISDICTIONAL INFIRMITY STRIKES AT THE ROOT, INVALIDATING THE ISSUANCE OF NOTICE, SECTION 292B CANNOT RESCUE IT. 8. THE REVENUE'S ARGUMENT SEEMS PLAUSIBLE AND EVEN LOGICAL BECAUSE THE COMMISSIONER OR A CHIEF COMMISSIONER IS UNARGUABLY RANKED HIGHER IN AUTHORITY THAN A JOINT COMMISSIONER. YET AT THE SAME TIME, THIS COURT HAS TO GIVE EFFECT TO PLAIN WORDS OF THE STATUTE WHICH UNAMBIGUOUSLY STATES THAT THE COMPETENT AUTHORITY IN SUCH CASES IS THE JOINT COMMISSIONER (AND NOT THE CHIEF COMMISSIONER OR THE PRINCIPAL COMMISSIONER). THE REVENUE'S SUBMISSIONS THAT ALL SUCH CASES, ARE COVERED UNDER PROVISO TO SECTION 147(1), THE COMPETENT AUTHORITY FOR PRIOR APPROVAL WOULD BE FOUR SUPERIOR OFFICERS, RENDERS SECTION 151(2) SUPERFLUOUS. IF ANYTHING THE COURT IS CLEAR THAT IT IS NOT ITS JOB TO RENDER, IN THE PROCESS OF INTERPRETATION, AN ENTIRE PROVISION ACADEMIC OR INOPERATIVE. THIS COURT IS OF THE OPINION THAT ACCEPTING THE REVENUE'S POSITION WOULD RESULT IN THAT CONSEQUENCE. THE COURT ALSO INVOKES THE PRINCIPLE ENUNCIATED BY THE PRIVY COUNCIL IN NAZIR AHMAD V. EMPEROR AIR 1936 PC 253 : THAT IF THE STATUTE MANDATES THAT SOMETHING BE DONE IN A PARTICULAR MANNER, SHOULD BE IN THAT MANNER OR NOT AT ALL. IN THIS CASE, SINCE THE ORIGINAL ASSESSMENT WAS COMPLETED 'OTHER THAN' THE EVENTUALITIES CONTEMPLATED IN SECTION 151(1), I.E. IT WAS PROCESSED UNDER SECTION 143(1). THUS, CLEARLY SECTION 151(2) APPLIED. 9. FOR THE ABOVE REASONS, THE COURT HOLDS THAT THERE IS NO INFIRMITY IN THE ORDER OF THE ITAT. NO SUBSTANTIAL QUESTION OF LAW ARISES. THE APPEAL IS THEREFORE DISMISSED. 19. THEREFORE, NOW THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE AS F OR REOPENING OF THE ASSESSMENT AS SANCTION HAS BEEN TAKEN FROM THE LEARNED CIT INSTEAD OF JOINT CIT. HENCE, RESPECTFULLY FOLLOWING THE DECISION OF THE HONOURABLE DELHI HIGH COURT, WE HOLD THAT THE ORDER PASSED BY THE LEARNED PAGE | 15 ASSESSI NG OFFICER ARE NOT SUSTAINABLE. IN VIEW OF THIS ALL FOUR APPEALS OF THE ASSESSEE ARE ALLOWED ACCORDINGLY. 20. AS WE ALREADY ALLOWED THE APPEAL OF THE ASSESSEE ON THE GROUND OF INCORRECT SANCTION OBTAINED BY THE LEARNED ASSESSING OFFICER HOLDING THAT THE ORDE R PASSED BY THE LEARNED ASSESSING OFFICER FOR ALL THESE 4 YEARS ARE NOT SUSTAINABLE IN LAW, CONSEQUENTLY THE APPEALS OF THE LEARNED ASSESSING OFFICER ARE ALSO NOT SUSTAINABLE. IN VIEW OF THIS, ALL THESE 4 APPEALS OF THE LEARNED ASSESSING OFFICER ARE DISMI SSED. 21. ACCORDINGLY, APPEALS OF THE ASSESSEE ARE ALLOWED AND APPEALS OF THE LEARNED AO ARE DISMISSED. - SD/ - - SD/ - ( AMIT SHUKLA ) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 2 1 / 12 / 2018 A K KEOT COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI