ROSHAN MAHESHWARI,JAMSHEDPUR vs. ITO,WARD-3(5), CHAIBASA

Per Bench

These are appeals filed by the assessee against the separate orders

of the Commissioner of Income Tax(Appeals)- dated 14.12.2018 for the

assessment years 2009-2010 and 2010-11.

“1. That the Assessment order passed u/s.147/143(3) is liable to be quashed in limine since the approval required u/s.151 was not taken from the competent authority i,.e. from CIT, Jamshedpur.

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the assessment years involved in this case are 209-10 & 2010-

2011. Ld A.R. referred to order sheet of the department and

submitted that notice u/s.148 of the Act was issued on 4.11.2016,

which is beyond the period of four years from the date of the

P a g e 2 | 7 relevant assessment years. Ld Authorised Representative by

referring to page 1 of the assessment order passed under section

147 r.w.s 143(3) of the Act dated 31.3.2016 in both the years

under appeal submitted that the Assessing officer before issuing

notice for reopening of assessment has taken approval of Addl.

Commissioner of Income Tax, Range-3, Jamshedpur vide his letter

F.No.Addl.CIT/R-3/JSR/U/S/147/2014-15/1276 dated 30.10.2015.

He pointed out that provisions of section 151 of the Act were

amended by the Finance Act, 2015 w.e.f. 1.6.2015 and the

amended provisions of Section 151(1) read as under:

“No notice shall be issued under section 148 by the Assessing Officer after the expiry of four years from the end of the relevant assessment years, unless the Principal Chief Commissioner or Chief Commissioner, or Principal Commissioner or Commissioner is satisfied on the reasons recorded by the Assessing Officer that it is a fit case for issue of such notice.” 7. He further relied on the decision of Hon’ble Jharkhand High

Court in the case of Navketan Enterprises vs CIT, (2001) 250 ITR

508 (Jharkhand) and submitted that the Hon’ble High Court has

held that the manner of issue of notice under section 148 and the

requirements to be complied with, are contained in section 151. If

therefore, the Assessing Officer contemplates initiating

proceedings under section 147 and before he does so since he has

to issue a notice under section 148, the requirements as contained

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under section 148 of the Act, the Assessing officer is supposed to

look at the law as it presently stands and apply the same. He has

not to go back to a law which stood at a point of time when the

original assessment order was passed. Obtaining the approval of

a superior officer is procedural in nature. Therefore, for the

purpose of obtaining the approval, the Assessing Officer has to

apply the law as it stands on the date when he decides, by

recording his reasons, to invoke section 147 and, thus decides to

issue notice under section 148. He submitted that the Assessing

officer was required to seek approval from Principal Chief

Commissioner or Chief Commissioner, or Principal Commissioner

or Commissioner as reopening of assessment was made after four

years from the end of the relevant assessment years. As the

approval was obtained from the Addl. Commissioner of Income

Tax, Range-3, Jamshedpur, therefore, the reopening of

assessment was bad in law and consequently, the assessment

order passed in pursuance to the said notice is also bad in law and

is required to be cancelled.

authorities.

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relevant materials placed on the record of the Tribunal. It is an

admitted fact that before issuing notice u/s.148 of the Act, the

Assessing Officer was required to obtain approval from the Pr.

CCIT or PCIT, as the case may be. However, the Assessing Officer

has initiated the reassessment proceedings after taking approval

from the Addl. CIT, Range-3, Jamshedpur. Before us, ld A.R. of

the assessee produced a copy of decision of co-ordinate Bench of

this Tribunal in the case of Kamendra Mishra vs ITO in ITA

Nos.201 & 202/Ran/2017 for the assessment years 2009-10 &

2010-2011 order dated 30.11.2018 and submitted that the issue

at hand is covered in favour of the assessee. We have perused

the order of the Tribunal, wherein, on similar facts, it has been

observed as under:

‘ 9. In the above facts and circumstances of the case, we are of the considered opinion that as the Assessing Officer had not taken approval from the Principal Chief Commissioner or Chief Commissioner, or Principal Commissioner or Commissioner, for reopening of assessment, which was beyond the period of four years from the end of the relevant assessment years by issuance of notice under section 148 on 3.2.2016, which was not in accordance with the provisions of section 151(1) of the Act applicable at the relevant point of time, the issuance of notice u/s.148 of the Act is bad in law and consequently, the assessment order passed under section 147 r.w.s 143(3) is also bad in law and hence, same is cancelled. Therefore, this ground of appeal is allowed.’

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case of Kamendra Mishra (supra). We find that the Assessing

Officer has not taken approval from the Pr. CCIT or PCIT for

initiating reassessment proceedings and issuing notice u/s.148 of

the Act. Therefore, respectfully following the decision of the

Tribunal in the case of Kamendra Mishra (supra), we quash the

reassessment order passed on 31.3.2016 and allow the grounds of

appeal of the assessee for both the assessment years under

appeal.

ground, other grounds taken by the assessee have become

infructuous.

Order pronounced on 27/08/2019.

Sd/- sd/- (Laxmi Prasad Sahu) (Chandra Mohan Garg) ACCOUNTANT MEMBER JUDICIALMEMBER

Ranchi; Dated 27 /08/209 B.K.Parida, SPS

P a g e 6 | 7 Copy of the Order forwarded to : 1. The Appellant : Roshan Maheshwari, Prop. M/a. Maheshwari Minerals, H.No.35, Aastha Krishna Tower, S.N.P. Area, Sakchi, Jamshedpur

Sr. Pvt. Secretary, ITAT, Cuttack camp at Ranchi

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