Loading judgment…
No AI summary yet for this case.
PER N.K. SAINI, VICE PRESIDENT
This is an appeal by the assessee against the order dt. 20/06/2019 of Ld. CIT(A)- 1Jalanadhar
Following grounds have been raised in this appeal.
That the order passed by the Hon'ble CIT(A) dated 20.06.2019 is against the law and facts of the case.
2. That having regard to the facts and circumstances of the case, Hon'ble CIT(A) has erred in law and on facts in confirming the action of Ld. A.O. in framing the impugned assessment order u/s 143(3) r.w.s 147 and without complying with the mandatory conditions u/s 147/148 as envisaged under the Income Tax Act, 1961. 3. That having regard to the facts and circumstances of the case, Hon'ble CIT(A) has erred in law and on facts in confirming the action of Ld. A.O. in making an addition of Rs. 50,95,670/- on account of cash deposit in bank account, by ignoring the facts of the case and submissions of assessee and without observing the principles of natural justice. 4. That the appellant craves the leave to add, modify, amend or delete any of the grounds of appeal at the time of hearing and all the above grounds are without prejudice to each other.
3. The assessee also raised the additional ground vide application dt. 07/03/2020 stating therein as under:
1. That having regard to the facts and circumstances of the case, Hon'ble CIT(A) has erred in law and on facts in confirming the action of Ld. A.O. in passing the impugned assessment order u/s 147 r.w.s 143(3) of the Act and that too without complying with the mandatory requirements and conditions u/s 151 as envisaged under the Income Tax Act, 1961. Since the above ground does not require fresh facts to be investigated and goes to the root of the matter, it is prayed that it may please be admitted in view of the Hon'ble Supreme Court decision in the case of NTPC Limited 229 ITR 383.
The Ld. Counsel for the assessee submitted that the additional ground raised is purely a legal ground, it does not require any investigation and goes to the root of the matter, therefore, the same may be admitted. The reliance was placed on the judgment of the Hon'ble Apex Court in the case of M/s National Thermal Power Co. Ltd. Vs. CIT reported at 229 ITR 383.
In his rival submissions the Ld. DR opposed the admission of the additional ground and submitted that the assessee did not raise the objection before the A.O. relating to the validity of reopening the assessment, therefore, the additional ground furnished by the assessee may not be admitted.
In his rejoinder the Ld. Counsel for the assessee submitted that the issue relating to the reopening was challenged before the Ld. CIT(A) who had adjudicated the same. The reference was made to page no. 7 to 9 of the impugned order.
We have considered the submissions of both the parties and perused the material available on the record. In the present case it is noticed that the additional ground raised by the assessee relating to the invoking of the provisions under section 147 of the Income Tax Act, 1961 (hereinafter referred to as ‘Act’) by the A.O. and the mandatory requirement envisaged under section 151 of the Act is purely a legal ground which goes to the root of the matter, therefore the same is admitted by keeping in view the ratio laid down by the Hon'ble Apex Court in the case of M/s National Thermal Power Co. Ltd. Vs. CIT 229 ITR 383 wherein it has been held as under:
“ The Tribunal should not be prevented from considering questions of law arising in assessment proceedings, although not raised earlier. The view that the Tribunal is confined only to issues arising out of the appeal before the Commissioner (Appeals) is too narrow a view to take of the powers of the Tribunal.” It has further been held that :
Undoubtedly, the Tribunal has the discretion in allow or not to allow a new ground to be raised. But where the Tribunal is only required to consider the question of law arising from facts which are on record in the assessment proceedings, there is no reason why such a question should not be allowed to be raised when it is necessary to consider that question in order to correctly assess the tax liability of an assessee.” 7.1 From the aforesaid additional ground raised by the assessee it would be clear that the assessee has challenged the jurisdiction assumed by the A.O. under section 147 r.w.s 148 of the Act without complying with mandatory requirement and conditions envisaged under section 151 of the Act.
The facts related to this issue in brief are that the A.O. on the basis of AIR information that the assessee had deposited cash amounting to Rs. 25,00,000/- in saving bank account maintained with Punjab & Sind Bank, New Grain Market, Jalnadhar initiated the proceedings under section 147 of the Act and issued the notice under section 148 of the Act. The A.O. framed the assessment at an income of Rs. 50,99,170/- as against Rs. 3,500/- declared by the assessee alongwith agriculture income of Rs 2,00,000/-.
9. Being aggrieved the assessee carried the matter to the Ld. CIT(A) and challenged the validity of the reopening of the assessment. It was submitted that the reasons recorded by the A.O. were completely based on incorrect facts.
10. Ld. CIT(A) however observed that as the source of cash deposit received in the bank remained unexplained, the proceedings under section 147 of the Act were initiated. He therefore sustained the action of the A.O. in initiating the proceedings under section 147 of the Act.
Now the assessee is in appeal.
The Ld. Counsel for the assessee reiterated the submissions made before the authorities below and further submitted that the assessee had obtained the copy of the approval and satisfaction under section 151 of the Act from the A.O. (copy of which is placed at page no. 1 of the assessee’s paper book) wherein at Sl. No. 12 pertaining to the satisfaction of the Ld. JCIT for approval to issue the notice under section 148, it has been mentioned by the Ld. JCIT, Range-1, Jalandhar that “ Yes it is a fit case for 148 action “. It was contended that from the aforesaid approval it is clear that no satisfaction was recorded by the Ld. JCIT while granting the approval to the A.O. for reopening of the assessment, therefore on the basis of the mechanical approval the reopening by the A.O. under section 147 of the Act was not valid approval. The reliance was placed on the decision of the ITAT Chandigarh Bench “B”, Chandigarh in the case of Shri Tek Chand, Karnal Vs. ITO, Ward-2, Kaithal in for the A.Y. 2009-10 order dt. 15/03/2021, copy of the said order was furnished which is placed on record. Reliance was also placed on the following case laws:
• CIT Vs. S. Goyanka Lime & Chemical Ltd. Supreme Court of India, SLP(C) Appeal Nos. 11916 of 2015 • CIT Vs. S. Goyanka Lime & Chemical Ltd. High Court of Madhya Pradesh, (2015) 231 Taxman 0073 (MP) • PAC Air Systems P. Ltd. Vs. ITO in the ITAT Delhi Bench, dt. 01/01/2020 • Tara Alloys Ltd. Vs. ITO, Ward 16(1), New Delhi in the ITAT Delhi Bench, ITA No. 5407/Del/2018 dt. 19/12/2019 • Dharmender Kumar Vs. ITO in the ITAT Delhi Bench, ITA No. 2728/Del/2018 dt. 16/10/2019 • Ghanshyam Vs. ITO in the ITAT, Agra Bench, ITA Nos. 129 & 238/Agra/2018 • United Electrical Company (P) Ltd. Vs. CIT & Ors. High Court of Delhi, (2002) 258 ITR 317 (Del) • Ladhuram Laxmi Narayan Vs. ITO, Additonal (1976) 102 ITR 595 (Gauhati) • P. Munirathnam Chetty And P.. Vs. ITO, C-Ward And (1975) 101 ITR 385 (AP) Copies of the aforesaid case laws were furnished which are placed on record.
In his rival submissions the Ld. DR strongly supported the impugned order passed by the Ld. CIT(A) and further submitted that the A.O. after obtaining the approval from the Ld. JCIT under section 151 of the Act issued notice under section 148 of the Act for reopening the assessment under section 147 of the Act. It was stated that the A.O. after recording the reasons applied, his mind and reopened the assessment.
We have considered the submissions of both the parties and perused the material available on the record. In the present case it is noticed that the A.O. obtained the approval of the JCIT before issuing the notice under section 148 of the Act, performa copy of which is placed at page no. 1 of the assessee’s paper book, in the said Performa for recording the reasons for initiating the proceedings under section 147 / 148 of the Act and for obtaining the approval of the Ld. JCIT, it has been mentioned in column no. 11 as under:
“ Yes it is approved for 148 action “ SD/- (Umesh Takyar) Joint Commissioner of Income Tax Range-1, Jalandhar From the aforesaid approval it is clear that the JCIT, Range-1, Jalandhar recorded the satisfaction in a mechanical manner without application of mind. He accorded the sanction for issuing notice under section 148 of the Act in a mechanical manner.
14.1 On a similar issue the Hon'ble Guwahati High Court in the case of Ladhuram Laxmi narayan Vs. ITO, Additional 102 ITR 595 (supra) held as under:
Sub-section (2) of Section 151 requires that before issuing a notice under Section 148, the Commissioner must be satisfied on the reasons recorded by the Income-tax Officer that it is a fit case for the issue of such notice. The submission of the learned counsel is that in the instant case there was no real satisfaction of the Commissioner or in other words there could not be satisfaction of the Commissioner as contemplated under Subsection (2) in the facts and circumstances of the case. In the column of the report whether the Commissioner was satisfied, the Additional Commissioner said " Yes ".
We have already found that the first ground given by the Income-tax Officer in his report praying for sanction for acting under Section 148 is admittedly a mistaken ground and, therefore, non-existent. That being so, the satisfaction of the Additional Commissioner in the instant case, so far as the first ground is concerned, is wholly mechanical without applying his mind.
It has further been held
Regarding the second ground, we find that the satisfaction could in law be only with respect to Clause (b) of Section 147 and that being so the notice issued on March 10, 1971, would be clearly barred under Section 149 of the Act.
In the result, in any view of the matter, we find that the impugned notice under Section 148 in the instant ease is bad in law and without jurisdiction. Accordingly, we quash the impugned notice dated March 10, 1.971, under Section 148 of the Act.
14.2 A similar view has been taken by the Hon'ble Andhra Pradesh High Court in the case of P. Munirathnam Chetty And P. Vs. ITO, C-Ward 101 ITR 385 (supra)wherein it has been held as under:
The form like the one which is being used containing an endorsement merely saying "Yes" would justifiably cause apprehension that the act of the Commissioner is a mechanical act. In order to obviate this impression and to infuse more confidence in the assessee, it would be proper if the Commissioner also briefly slates why he has given his sanction to the proceedings under Section 147, thus avoiding all arguments in courts of law whether he applied his mind or he would have been satisfied in the circumstances of the case or not. 14.3 On an identical issue the ITAT Chandigarh Bench “B” Chandigarh vide order dt. 15/03/2021 in for the A.Y. 2009-10 in the case of Shri Tek Chand Vs ITO, Ward-2, Kaithal held as under:
14.1 The A.O. obtained the approval of the PR. CIT before issuing the notice under section 148 of the Act. The proposal dt. 11/03/2016 seeking the approval for issuance of notice under section 148 of the Act, by the A.O. is placed at page no. 2 & 3 of the assessee’s paper book. While giving the approval the Ld. PR. CIT, Karnal recorded as under: “ Yes, satisfied, it is a fit case for issue of notice under section 148 “ Sd/- Pr. CIT, Karnal 14.2 From the aforesaid approval, it is clear that the Ld. Pr. CIT recorded satisfaction in the mechanical manner, without application of mind to accord sanction for issuing notice under section 148 of the Act. On an identical issue the Hon'ble M.P. High Court in the case of CIT Jabalpur Vs. S. Goyanka Lime & Chemical Ltd. reported at (2015) 56 Taxmann.com 390 by following its own decision in the case of Arjun Singh Vs. ADIT (2000) 246 ITR 363 (M.P) held as under: 7. We have considered the rival contentions and we find that while according sanction, the Joint Commissioner, Income Tax has only recorded so "Yes, I am satisfied". In the case of Arjun Singh (supra), the same question has been considered by a Coordinate Bench of this Court and the following principles arc laid down:— The Commissioner acted, of course, mechanically in order to discharge his statutory obligation properly in the matter of recording sanction as he merely wrote on the format "Yes, 1 am satisfied" which indicates as if he was to sign only on the dotted line. Even otherwise also, the exercise is shown to have been performed in less than 24 hours of time which also goes to indicate that the Commissioner did not apply his mind at all while granting sanction. The satisfaction has to be with objectivity on objective material.' 8. If the case in hand is analysed on the basis of the aforesaid principle, the mechanical way of recording satisfaction by the Joint Commissioner, which accords sanction for issuing notice under section 148, is clearly unsustainable and we find that on such consideration both the appellate authorities have interfered into the matter. In doing so, no error has been committed warranting reconsideration.
As far as explanation to Section 151, brought into force by Finance Act, 2008 is concerned, the same only pertains to issuance of notice and not with regard to the manner of recording satisfaction. That being so, the said amended provision does not help the revenue.
In view of the concurrent findings recorded by the learned appellate authorities and the law laid down in the case of Arjun Singh (supra), we see no question of law involved in the matter, warranting reconsideration.
14.3 Against the said order, the Hon'ble Apex Court dismissed the SLP filed by the Department and affirmed the order of the Hon'ble M.P. High Court in the case of CIT Vs. S. Goyanka Lime & Chemicals Ltd. (supra) held as under: “ that where Joint Commissioner recorded satisfaction in mechanical manner and without application of mind to accord sanction for issuing notice under section 148, reopening of assessment was invalid.”
15. We therefore by following the ratio laid down by the Hon'ble Apex Court in the aforesaid referred to case, are of the view that the reopening under section 148 of the Act on the basis of mechanical approval without applying the mind by the Ld. Pr.CIT was not valid. Therefore, in the present case, the reopening of the assessment on the basis of notice under section 148 of the Act is quashed. 14.4 In the present case also since the A.O. reopened the assessment under section 147 of the Act by issuing the notice under section 148 of the Act, on the basis of mechanical approval, without applying his mind, therefore the said approval was not valid and consequently the reopening of the assessment on the basis of said approval was not valid. We therefore quash the same. Since, we have decided the legal issue in favour of the assessee therefore no finding is given on the other grounds raised by the assessee on merit.
In the result, appeal of the assessee is allowed.
(Order pronounced on 29/06/2021)