Kisan Discretionary Family Trust, Ahmedabad V. The ACIT., Cent.Circle-1(1), Ahmedabad

ITA 608/AHD/2005

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 60577 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 year(s) 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-07-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 12-01-2012
• Assessment Year: 1996-1997
• Appeal Filed On: 24-02-2005
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S N SAPORKAR
• Keywords: Rectification of order
• Section: 143(3); 133A; 147; 148; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD C BENCH BEFORE: SHRI D.K. TYAGI, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTAN T MEMBER I.T.A. NO.608/AHD/2005 A. Y. 1996-97 KISAN DISCRETIONARY FAMILY TRUST NIRMA HOUSE, ASHRAM ROAD AHMEDABAD APPELLANT VS. ASSTT. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-1(1) AHMEDABAD RESPONDENT DEPARTMENT BY : SHRI VINOD TANWANI, SR. D.R. ASSESSEE BY : SHRI S.N. SAPORKAR, A.R. DATE OF HEARING : 08.05.2012 DATE OF PRONOUNCEMENT 06.07.2012 / ORDER PER : D.K. TYAGI, JUDICIAL MEMBER THIS IS ASSESSEES APPEAL AGAINST THE ORDER OF LD. CIT(A)-XI, AHMEDABAD DATED 10.12.2004. 2. GROUND NO.1 IS GENERAL IN NATURE AND DOES NOT R EQUIRE ANY ADJUDICATION. GROUND NO.2 READS AS UNDER:- IN LAW AND IN FACTS AND CIRCUMSTANCES OF THE APPELLANTS CASE, THE LD. CIT(A) HAS ERRED IN HOLDI NG THE REOPENING OF THE ASSESSMENT AS LEGAL AND JUSTIFIED. I.T.A. NO.608/AHD/2005 A. Y. 1996-97 2 3. BRIEF FACTS OF THE CASE ARE THAT A RETURN OF IN COME WAS FILED BY THE ASSESSEE SHOWING INCOME OF RS.73,97,050/- WHICH WAS PROCESSED U/S 143(1) OF THE ACT ON 27.02.1999. THEREAFTER ORDER U/S 154 WA S PASSED ON 03.03.2000 AND THE REVISED INCOME OF THE ASSESSEE WAS DETERMINED A T RS.64,51,555/-. SUBSEQUENTLY, ASSESSMENT WAS REOPENED U/S 147 BY IS SUING NOTICE U/S 148 OF THE ACT REQUIRING THE ASSESSEE TO FILE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION. FOR REOPENING THE A.O. TOOK THE STA TUTORY APPROVAL FROM THE CIT. THE ASSESSEE VIDE ITS LETTER DATED 06.01.2004 SUBMI TTED THAT THE RETURN OF INCOME FILED FOR THE YEAR UNDER CONSIDERATION ON 30.10.199 6 MAY BE CONSIDERED AS RETURN FILED IN RESPONSE TO NOTICE U/S 148 OF THE ACT. TH E ASSESSMENT U/S 143(3) READ WITH SECTION 147 OF THE ACT WAS FINALIZED BY THE A. O. ON 27.02.2004 DETERMINING THE ASSESSEES TOTAL INCOME AT RS.2,86,05,160/-. W HILE FINALIZING THE ASSESSMENT THE A.O. MADE CERTAIN ADDITIONS TO THE INCOME PREVI OUSLY ASSESSED BY HIM. 4. AGGRIEVED BY THIS ORDER OF THE A.O. ASSESSEE WE NT IN APPEAL BEFORE LD. CIT(A). BESIDES CHALLENGING THE ADDITION MADE BY T HE A.O. THE ASSESSEE ALSO CHALLENGED THE REOPENING OF THE ASSESSMENT U/S 147 OF THE ACT. HOWEVER, LD. CIT(A) CONFIRMED THE ACTION OF THE A.O. IN REOPENIN G OF THE ASSESSMENT U/S 147 OF THE ACT BY THE A.O. FURTHER AGGRIEVED, NOW THE ASS ESSEE IS IN APPEAL BEFORE US. 5. AT THE TIME OF HEARING LD. COUNSEL OF THE ASSES SEE PLACING RELIANCE ON THE DECISIONS OF HONBLE DELHI HIGH COURT IN THE CA SE OF CIT VS. SPLS SIDDHARTHA LTD. AND DECISION OF HONBLE BOMBAY HIGH COURT IN T HE CASE OF SHRI GHANSHYAM K. KHABRANI VS. ACIT SUBMITTED THAT WHILE REOPENING TH E ASSESSMENT OF THE ASSESSEE U/S 147 OF THE ACT THE A.O. HAS TAKEN APPROVAL OF T HE CIT INSTEAD OF ADDL. CIT, AS MANDATED IN THE ACT. SINCE THE PROCEDURE, AS LAID DOWN UNDER THE ACT, HAS NOT I.T.A. NO.608/AHD/2005 A. Y. 1996-97 3 BEEN FOLLOWED IN THIS CASE, THE REOPENING OF ASSESS MENT U/S 147 WAS BAD IN LAW AND THE ORDER PASSED BY THE A.O. MAY KINDLY BE QUAS HED. 6. LD. D.R. VEHEMENTLY SUPPORTED THE ORDER OF THE LOWER AUTHORITIES AND FILED A SUMMARY OF HIS ARGUMENTS WHICH READ AS UNDE R:- A) FIRST ARGUMENT: EVEN IF THE RATIO OF THE DECISION OF HON'BLE DELHI HIGH COURT (DHC) IN THE CASE OF CIT VS. SPL SIDHARATH LTD. IS TAKEN TO BE CORRECT AS THE FACTS OF THE CASE BEFORE HON'BLE DHC WERE DIFFERENT IT WOULD NOT APPLY IN THE FACTS AND CIRCUM STANCES OF THE PRESENT CASE. IN THE CASE BEFORE THE HON'BLE DHC THE ADDL. CIT HAD ONLY MADE THE TERSE OBSERVATION 'CIT MAY KINDLY ACCORD SANCTION' IN THE PERFORMA. AS AGAINST THIS IN THE PRESENT CASE THE FORWARDING LETTER OF THE ADDL.CIT DATED 13.2.2003 DEMONSTRATES DUE APPLICATION OF MIND BY H IM. THIS IS SO AS IN IT DIRECT REFERENCE IS MADE TO 'DE TAILED REASONS RECORDED IN THE ANNEXURE TO THE PROPOSAL'. THUS IT IS PRIMA FACIE CLEAR THAT HE HAS PERUSED NOT ONLY T HE PERFORMA BUT ALSO THE DETAILED REASONS MENTIONED IN THE ANNEXURE. B) SECOND ARGUMENT: A. HON'BLE DHC HAS SUBSTITUTED WORD 'SATISFIED' US ED IN SECTION 151(2) WITH THE WORDS 'APPROVAL' AND 'SA NCTION'. THIS IS AGAINST THE GOLDEN RULE OF STATUTORY INTERP RETATION OF LITERAL CONSTRUCTION. THESE THREE WORDS ARE NOT SUBSTITUTABLE AS WHEREVER THE LEGISLATURE INTENDED THAT THE HIGHER AUTHORITY GRANT APPROVAL IT HAS USED THE WOR D 'APPROVAL' FOR E.G. IN SECTION 131(3) ,132(8), 133A ETC. SIMILARLY WHEREVER THE LEGISLATURE INTENDED THAT TH E HIGHER AUTHORITY ACCORD 'SANCTION' IT HAS USED THE WORD 'S ANCTION' FOR E.G. IN SECTION 279. RELIANCE PLACED ON MAULVI HUSSEIN HAJI ABRAHAM VS THE SATE OF GUJARAT AIR 2004 SC 3946 B. THE LEGAL MEANING OF THE THREE WORDS 'SATISFIED' , 'APPROVAL' AND 'SANCTION' IS WELL SETTLED. AS PER T HE WHARTON'S CONCISE LAW DICTIONARY THE WORD 'SATISFIE D' MEANS BEING FREE OF ANXIETY, DOUBT, PERPLEXITY, SUS PENSE OR UNCERTAINTY. WHEREAS 'APPROVAL' MEANS 'TO HAVE OR EXPRESS A FAVORABLE OPINION OR TO ACCEPT AS SATISFACTORY'. AS AGAINST THIS 'SANCTION' REQUIRES AN INDEPENDENT PERUSAL FACTS AND RECORD AND ALSO THE RECITAL OF TH E REASONS FOR GRANTING APPROVAL. I.T.A. NO.608/AHD/2005 A. Y. 1996-97 4 A BARE PERUSAL OF THE FORWARDING LETTER OF THE ADDL . CIT SHOWS THAT WHILE FORWARDING THE PERFORMA TO THE CIT HE WAS DEFINITELY FREE OF ANXIETY, DOUBT, PERPLEXIT Y, SUSPENSE OR UNCERTAINTY AND HENCE THE STATUTORY REQUIREMENT OF THE ADDL. CIT BEING 'SATISFIED' WITH THE REASONS RECORDED STOOD FULFILLED AT THE VERY INSTAN CE OF FORWARDING OF THE PERFORMA TO THE CIT. THIS BEING S O THE ASSUMPTION OF JURISDICTION UNDER SECTION 147 CANNOT BE HELD TO BE VITIATED EVEN IF ADDITIONAL ENDORSEMENT HAS ALSO BEEN OBTAINED FROM THE CIT. C) THIRD ARGUMENT: A. THE HON'BLE DHC IN THE CASE BEFORE IT HAS HELD THAT THE ADDL CIT DID NOT APPLY HIS MIND. WITH REGARD TO THIS FINDING THE ORDER OF THE HON'BLE DHC IS 'PER I NCURIAM' IS IT HAS FAILED TO TAKE COGNIZANCE OF THE FULL BEN CH DECISION OF THE DHC IN THE CASE OF CIT VS. KELVINATOR OF INDIA LTD. 123 TAXMANN 433 (FB) WHEREIN ON THE BASIS OF THE STATUTORY PRESUMPTION UNDER SECTION 114(E) OF THE INDIAN EVIDENCE ACT, 1872 THE HON'BLE COURT HAD DRAWN A PRESUMPTION IN INCOME TAX MATTER THAT ALL O FFICIAL ACTS HAVE BEEN PERFORMED REGULARLY. IN VIEW OF THE STATUTORY PRESUMPTION UNDER SECTION 114(E) OF THE INDIAN EVIDENCE ACT, 1872 THE ONUS IS ON THE ASSESSEE TO REBUT THAT THE ADDL CIT WHILE ENDORSING THE MATTER TO THE CIT HAD ACTED WITHOUT APPLICATION OF MIND. ITA NO 608/AHD/2005 KISAN DISCRETIONARY FAMILY TRUST AY 1996-1997 B. AS SEEN FROM THE MEANING OF THE WORDS 'SATISFIED ', 'APPROVAL' AND 'SANCTION' THEY CONSTITUTE A HIERARC HY OF ENDORSEMENT OF A PROPOSED ACTION. EVEN IF IT IS TAK EN THAT THE HON'BLE DHC HAS CORRECTLY APPLIED THE BENCHMARK OF 'SANCTION' FOR THE PURPOSE OF SECTION 151(2) THE IN FERENCE IT HAS DRAWN ARE CONTRARY TO CATENA OF SC DECISIONS. AS THE HON'BLE SC HAS IN THE CASE OF STATE OF BIHAR VS PP SHARMA AIR 1991 SC 1260, STATE OF MP VS HARISHANKAR BHAGWAN (2010) 8 SCC 655, CS KRISHNAMURTHY VS STATE OF KARNATAKA AIR 2005 SC 2790 AND STATE OF MAHARASHTRA VS. ISHWAR PIRAJI KALPATRI AIR 1996 SC 722 HAS HELD THAT EVEN IN CASES WHERE THE SANCTION ORDER DOES NOT FOR DEMONSTRATE INDEPENDENT PERUSAL OF MATERIAL AND DOES NOT CARRY RECITAL OF REASONS IN VIEW OF THE STATUTORY PRESUMPTION UND ER SECTION 114(E) OF THE INDIAN EVIDENCE ACT, 1872 IF IT IS ESTABLISHED THAT ALL RELEVANT MATERIAL WAS DULY PUT UP FOR PERUSAL BEFORE THE AUTHORITY THEN THE SANCTION IS N OT VITIATED. I.T.A. NO.608/AHD/2005 A. Y. 1996-97 5 AS BOTH THE DECISION OF THE DHC AND THE DECISION OF THE HON'BLE MUMBAI HC IN THE CASE OF GHANSHYAM K. KHABRANI VS. ACIT ARE BOTH IS 'PER INCURIAM' AS THEY HAVE FAILED TO TAKE COGNIZANCE OF THE PRINCIPLES SETTLED BY THE ABOVE MENTIONED DECISIONS OF THE SC. THESE 'PER INC URIAM' JUDGMENTS ARE IS NOT BINDING ON THE HON'BLE ITAT IN VIEW OF THE DECISION IN THE CASE OF KANEL OIL & EXPORTS INDS. LTD. VS. JCIT (2009) 121ITD 596 (AHD.) (TM). 7. IN REPLY THE LD. COUNSEL OF THE ASSESSEE SUBMIT TED THAT IN THE CASE DECIDED BY HONBLE BOMBAY HIGH COURT ALSO THE ADDL. CIT FORWARDED THE PROPOSAL OF THE A.O. TO THE CIT AFTER RECORDING THE GIST OF THE COMMUNICATIONS RECEIVED FROM THE A.O. AND THEREBY APPLYING HIS MIND ON THE PROPO SAL OF THE A.O. AND EVEN THEN IT WAS HELD BY THE HONBLE HIGH COURT THAT REOPENIN G WAS NOT PROPER. LD. COUNSEL FURTHER SUBMITTED THAT THOUGH HONBLE DELHI HIGH CO URT HAS SUBSTITUTED THE WORD SATISFIED USED IN SECTION 151(2) WITH THE WORD A PPROVAL AND SANCTION BUT IN THE CASE OF GHANSHYAM K. KHABRANI (SUPRA) DECIDED B Y BOMBAY HIGH COURT, THERE IS NO SUCH SUBSTITUTION AND THEREFORE, THE ARGUMENT ADVANCED BY LD. D.R. IN THIS RESPECT ARE TO BE IGNORED WHILE DECIDING THE ISSUE IN HAND WHICH IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION O F GHANSHYAM K. KHABRANI (SUPRA). 8. AFTER HEARING BOTH THE PARTIES AND PERUSING THE RECORD WE FIND THAT IN THIS CASE RETURN OF INCOME DECLARING TOTAL INCOME O F RS.73,97,050/- WAS FILED ON 30.10.1996. THE SAME WAS PROCESSED U/S 143(1) OF TH E ACT ON 22.02.1999. THEREAFTER ORDER U/S 154 DATED 30.03.2000 WAS PASSE D AND REVISED TOTAL INCOME OF THE ASSESSEE, AFTER THIS RECTIFICATION ORDER, WAS R S.64,51,555/-. THE REASONS FOR REOPENING ASSESSMENT WERE RECORDED ON 10.02.2003. SINCE MORE THAN FOUR YEARS FORM THE END OF THE ASSESSMENT YEAR HAD LAPSED, AS PER PROVISO U/S 151(1), I.T.A. NO.608/AHD/2005 A. Y. 1996-97 6 STATUTORY APPROVAL OF JOINT COMMISSIONER WAS REQUIR ED. FOR THE SAKE OF CONVENIENCE THE PROVISIONS OF SECTION 151 ARE REPRO DUCED BELOW:- (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 SH ALL 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 SU CH NOTICE SHALL BE ISSUED UNLESS THE CHIEF COMMISSIONE R 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 UNDR SUB-SECTION (1), NO NOTICE SHALL BE ISSUED UNDER SE CTION 148 BY AN ASSESSING OFFICER, WHO IS BELOW THE RANK OF [JOINT] COMMISSIONER, AFTER THE EXPIRY OF OUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR, UNLESS THE [JOINT] COMMISSIONER IS SATISFIED, ON THE REASONS R ECORDED BY SUCH ASSESSING OFFICER, THAT IT IS A FIT CASE FO R THE ISSUE OF SUCH NOTICE.] [EXPLANATION.-FOR THE REMOVAL OF DOUBTS, IT IS HEREBY DECLARED THAT THE JOINT COMMISSIONER, THE COMMISSIONER OR THE 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.] 9. IN VIEW OF THE ABOVE,, AS IN THE PRESENT CASE A SSESSMENT HAD NOT BEEN MADE U/S 143(3) OR SECTION 147 FOR THE ASSESSMENT Y EAR UNDER APPEAL, AS PER THE PROVISIONS OF SUB SECTION 2 OF SECTION 151, NO NOTI CE COULD BE ISSUED U/S 148 BY AN A.O. WHO IS BELOW THE RANK OF DEPUTY COMMISSIONER A FTER 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 I.T.A. NO.608/AHD/2005 A. Y. 1996-97 7 THE ISSUE OF SUCH NOTICE. THE EXPRESSION JOINT COM MISSIONER IS DEFINED U/S 2(28C) TO MEAN A PERSON APPOINTED TO BE A JOINT COMMISSION ER OF INCOME TAX OR AN ADDITIONAL COMMISSIONER OF INCOME TAX U/S 117(1). IN THE PRESENT CASE, THE A.O. SUBMITTED A PROPOSAL ON 18.02.2003 TO THE CIT, CENT RAL-1 THROUGH ADDL. COMMISSIONER OF INCOME TAX, CENTRAL, RANGE-1. THIS PROPOSAL OF THE A.O. WAS FORWARDED BY ADDL. CIT TO THE CIT AFTER RECORDING A SUMMARY OF COMMUNICATION OF THE A.O. STATING THE ASSESSING OFFICER HAS PROPOSED TO REOPEN THE ASSESSMENT FOR ASSESSMENT YEAR 1996-97 OF THE ABOVE NAMED ASSESSEE FOR THE DETAILED REASONS MENTIONED I N THE ANNEXURE ATTACHED WITH THE PROPOSAL. NECESSARY APPR OVAL FOR REOPENING THE ASSESSMENT MAY KINDLY BE GRANTED. 10. ON 19 TH FEBRUARY, 2003 CIT CENTRAL-1, AHMEDABAD APPROVED T HE PROPOSAL OF THE A.O. DATED 10.02.2003. THUS THERE IS NO DISPUTE ABOUT THE FACT THAT THE REQUIREMENT OF SECTION 2 OF SECTION 151 HA S NOT BEEN FULFILLED IN THIS CASE AS THE SATISFACTION OF JOINT COMMISSIONER OF INCOME TAX WAS REQUIRED TO THE EFFECT THAT IT WAS A FIT CASE FOR THE ISSUANCE OF A NOTICE U/S 148. IN THE PRESENT CASE THE ADDITIONAL COMMISSIONER OF INCOME TAX FORWARDED THE PROPOSAL SUBMITTED BY THE ASSESSING OFFICER TO THE COMMISSIONER OF INCOME TAX . APPROVAL, WHICH HAS BEEN GRANTED, IS NOT BY THE ADDITIONAL COMMISSION OF INC OME TAX BUT BY THE COMMISSIONER OF INCOME TAX. THE COMMISSIONER OF IN COME TAX IS NOT A JOINT COMMISSIONER OR ADDL. COMMISSIONER WITHIN THE MEANI NG OF SECTION 2 (28C). SINCE, THE MANDATORY REQUIREMENT OF SECTION 147 AND 151(2) OF THE ACT HAS NOT BEEN COMPLIED WITH BEFORE ISSUANCE OF NOTICE U/S 14 8 OF THE ACT IN THIS CASE, THE NOTICE SO ISSUED WAS NOT VALID. I.T.A. NO.608/AHD/2005 A. Y. 1996-97 8 11. ON IDENTICAL FACTS, HONBLE BOMBAY HIGH COURT IN THE CASE OF SHRI GHANSHYAM K. KHABRANI (SUPRA) HAS HELD AS UNDER:- THE SECOND GROUND UPON WHICH THE REOPENING IS SOUGHT TO BE CHALLENGED IS THAT THE MANDATORY REQUIREMENT OF SECTION 151(2) HAS NOT BEEN FULFILLE D. SECTION 151 REQUIRES A SANCTION TO BE TAKEN FOR THE ISSUANCE OF A NOTICE UNDER SECTION 148 IN CERTAIN C ASES. IN THE PRESENT CASE, AN ASSESSMENT HAD NOT BE EN MADE UNDER SECTION 143(3) OR SECTION 147 FOR A.Y. 2 004- 05. HENCE, UNDER SUB SECTION 2 OF SECTION 151, NO N OTICE CAN BE ISSUED UNDER SECTION 148 BY AN ASSESSING OFF ICER WHO IS BELOW THE RANK OF JOINT COMMISSIONER AFTER T HE EXPIRY OF 4 YEARS FROM THE END OF THE RELEVANT ASSE SSMENT 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. THE EXPRESSION ' JOINT COMMISSIONER' IS DEFINED IN SECTION 2(28C) TO MEAN A PERSON APPOINTED TO BE A JOINT COMMISSIONER OF INCO ME TAX OR AN ADDITIONAL COMMISSIONER OF INCOME TAX UNDER SECTION 117(1). IN THE PRESENT CASE, THE RECORD BEF ORE THE COURT INDICATE THAT THE ASSESSING OFFICER SUBMITTED A PROPOSAL ON 28 MARCH 2011 TO THE RANGE (I) THANE. C IT(L) THANE THROUGH THE ADDITIONAL COMMISSIONER OF INCOME TAX RANGE (1) THANE. ON 28 MARCH 2011, THE ADDITIO NAL CIT FORWARDED THE PROPOSAL TO THE CIT AND AFTER RECORDING A GIST OF THE COMMUNICATION OF THE ASS ESSING OFFICER STATED THAT: 'AS REQUESTED BY THE A.O, NECESSARY APPROVAL FOR ISSUE OF NOTICE U/S. 148 MAY KINDLY BE GRANTED IN T HE CASE, IF APPROVED.' ON THIS A COMMUNICATION WAS ISSUED ON 29 MARCH 2011 FROM THE OFFICE OF THE CIT (1) CONVEYING APPRO VAL TO THE PROPOSAL SUBMITTED BY THE ASSESSING OFFICER. TH ERE IS MERIT IN THE CONTENTION RAISED ON BEHALF OF THE ASS ESSEE THAT THE REQUIREMENT OF SECTION 151(2) COULD HAVE O NLY BEEN FULFILLED BY THE SATISFACTION OF THE JOINT COM MISSIONER THAT THIS IS A FIT CASE FOR THE ISSUANCE OF A NOTIC E UNDER SECTION 148. SECTION 151(2) MANDATES THAT THE SATISFACTION HAS TO BE OF THE JOINT COMMISSIONER. T HAT EXPRESSION HAS A DISTINCT MEANING BY VIRTUE OF THE DEFINITION IN SECTION 2(28C). THE COMMISSIONER OF I NCOME TAX IS NOT A JOINT COMMISSIONER WITHIN THE MEANING OF SECTION 2(28C). IN THE PRESENT CASE, THE ADDITIONAL I.T.A. NO.608/AHD/2005 A. Y. 1996-97 9 COMMISSIONER OF INCOME TAX FORWARDED THE PROPOSAL SUBMITTED BY THE ASSESSING OFFICER TO THE COMMISSIO NER 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. WH EN THE STATUTE MANDATES THE SATISFACTION OF A PARTICULAR FUNCTIONARY FOR THE EXERCISE OF A POWER, THE SATISF ACTION 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 DEL HI 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 CONFERRE D UPON A PARTICULAR AUTHORITY HAVE TO BE EXERCISED BY THAT AUTHORITY AND THE SATISFACTION WHICH THE STATUTE MA NDATES OF A DISTINCT AUTHORITY CANNOT BE SUBSTITUTED BY TH E SATISFACTION OF ANOTHER. WE ARE IN RESPECTFUL AGREE MENT WITH THE JUDGMENT OF THE DELHI HIGH COURT. 12. IN VIEW OF THE ABOVE, THE REOPENING OF ASSESSM ENT BY THE A.O. U/S 147 IS NOT SUSTAINABLE IN LAW AND THEREFORE THE OR DER PASSED BY THE A.O. U/S 143(3) READ WITH SECTION 147 WHICH WAS SUSTAINED BY LD. CIT(A) IS HEREBY QUASHED. IN VIEW OF THIS, THE OTHER GROUNDS, TAKEN BY THE ASSESSEE IN THIS APPEAL DO NOT REQUIRE ANY ADJUDICATION. 13. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWE D. ORDER PRONOUNCED IN OPEN COURT ON 06.07.2012 SD/- SD/- (A. MOHAN ALANKAMONY) (D.K. TYAGI) ACCOUNTANT MEMBER JUDICIAL MEMBER TRUE COPY N.K. CHAUDHARY, SR. P.S. / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT I.T.A. NO.608/AHD/2005 A. Y. 1996-97 10 3. / CONCERNED CIT 4. - / CIT (A) 5. , ! , '# / DR, ITAT, AHMEDABAD 6. $% &' / GUARD FILE. BY ORDER/ , ( / ' ) ! , '# *