Smt. Nirmal Kumar, Kapurthala V. The Dy.Commissioner of Income Tax, Chandigarh

ITA 575/ASR/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8727 (ITAT-AMRITSAR)
• Duration Of Justice: 3 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Amritsar
• Assessment Year: 2007-2008
• Appeal Filed On: 21-11-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: BHAWANI SHANKER
• Keywords: Assessment record; Reassessment proceedings
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH: (CIRCUIT BENCH AT JALANDHAR) BEFORE SHRI A. D. JAIN, JUDICIAL MEMBER, AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER I.T.A NO.575/ASR/2016 (ASSESSMENT YEAR-2007-08) SMT. NIRMAL KAUR W/O SH. KULWANT SINGH VILLAGE MEHMADPUR DISTT. KAPURTHALA. PAN NO.BGKPM8581R (ASSESSEE) VS .. DY. CIT (INTERNATIONAL TAXATION, CHANDIGARH. (REVENUE) ASSESSEE BY SHRI . SANDEEP VIJH, AR. REVENUE BY SHRI. BHAWANI SHANKER, DR. ORDER PER, A. D. JAIN, JUDICIAL MEMBER: THIS IS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2007- 08 AGAINST THE ORDER DATED 19.09.2016 PASSED BY THE LD. CIT(A). 2. THE FIRST ISSUE RAISED IS THAT THE LD. CIT(A) HA S ERRED IN UPHOLDING THE ASSUMPTION OF JURISDICTION BY THE AO FOR REASSESSME NT. 3. THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED T HAT AS PER THE ASSESSMENT RECORD, THE SANCTION WAS TAKEN FROM THE ADDL. DIT; THAT WHILE GIVING THE SANCTION DATE OF HEARING 19.01.2017 DATE OF PRONOUNCEMENT 16 .03.2017 I.T.A NO.575/ASR/2016 2 (APB- 84) ON 25.03.2014, THE ADDL. DIT MENTIONED TH AT YES, THIS IS A FIT CASE FOR ACTION UNDER SECTIONS 147/148 OF THE IT ACT; THAT THE SANCTION WAS APPLIED FOR AND OBTAINED, AND THE NOTICE (APB-16) U/S 148 OF THE AC T WAS PREPARED ON 25.03.2014 ITSELF, I.E., ALL ON THE SAME DAY; THAT THIS FURTHE R SHOWS THAT THERE WAS NO APPLICATION OF MIND ON THE ISSUE; THAT THE ADDL. DIT IS REQUIRE D TO APPLY HIS MIND TO THE PROPOSAL PUT TO HIM FOR APPROVAL IN THE LIGHT OF TH E MATERIAL RELIED ON BY THE AO; THAT THE SAID POWER CANNOT BE EXERCISED CASUALLY AN D IN A ROUTINE MANNER, AS HELD IN UNITED ELECTRICAL COMPANY PVT. LTD. VS. CIT, 258 ITR 317 (DEL); AND THAT THE LD. CIT(A) HAS GONE WRONG IN NOT APPRECIATING THIS SUBM ISSION MADE SPECIFICALLY BEFORE HIM ON BEHALF OF THE ASSESSEE. 4. THE LD. DR PLACED STRONG RELIANCE ON THE IMPUGNE D ORDER. 5. THE AO, VIDE PROFORMA (APB-83-84), SHOUGHT APPRO VAL/SANCTION OF THE ADDL. DIT FOR INITIATING PROCEEDINGS UNDER SECTIONS 147/148 OF THE ACT AGAINST THE ASSESSEE. THE ADDL. DIT ACCORDED THE SANCTIONED (AP B 84) BY STATING: YES THIS IS A FIT CASE FOR ACTION UNDER SECTIONS 147/148 OF THE IT ACT. THE SANCTION IS STATED TO HAVE BEEN APPLIED FOR ON 25.03.2014. IT WAS ACCORDE D ON 25.03.2014. THE NOTICE (APB-16) U/S 148 OF THE ACT WAS ALSO ISSUED ON 25.0 3.2014. 6. THE LD. CIT(A) HAS OBSERVED (IMPUGNED ORDER PAGE 8, PARA 4.3, LAST SENTENCE) THAT: THE RANGE HEAD WHILE GIVING APPROV AL HAS APPLIED HIS MIND, AS HE HAS GIVEN HIS APPROVAL BASED ON THE FACTS AS PRESEN TED BY THE AO. I.T.A NO.575/ASR/2016 3 7. IN THIS REGARD, AS RIGHTLY CONTENDED, IN UNITED ELECTRICAL (SUPRA) (APB-85- 90) IT HAS BEEN HELD THAT THE COMMISSIONER (HEREIN ADDL. DIT) IS REQUIRED TO APPLY HIS MIND TO THE PROPOSAL PUT TO HIM FOR APPROVAL IN THE LIGHT OF THE MATERIAL RELIED ON BY THE AO; THAT THE SAID POWER CANNOT BE EXERCIS ED CASUALLY AND IN A ROUTINE MANNER. IN THAT CASE, AS IN THE PRESENT ONE, THE AD DL. COMMISSIONER HAD STATED: YES IT IS A FIT CASE FOR ISSUE OF NOTICE U/S 148. THE REASSESSMENT PROCEEDINGS WERE HELD TO BE INVALID. 8. THUS, IN KEEPING WITH UNITED ELECTRICAL (SUPRA ), CLEARLY, THE ASSUMPTION OF JURISDICTION FOR REASSESSMENT IS BAD IN LAW. IT IS QUASHED. NOTHING ELSE, THEREFORE, SURVIVES FOR ADJUDICATION. 9. IN THE RESULT, THE APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 16/03/2017. SD/- SD/- (T. S. KAPOOR) (A.D. JAIN) ACCOUTANT MEMBER JUDICIAL MEMBER DATED:16/03/2017 *AKV* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT BY ORDER AR/SR.P.S./P.S.