RAMDAS BHAUSAHEB BARNE,,PUNE vs. INCOME-TAX OFFICER, WARD - 10(3),, PUNE

The learned Departmental Representative for the Revenue on the other hand, placed reliance on the ratio laid down by Mumbai Bench of Tribunal in Laxminarayan Agarwal (HUF) Vs. ITO (2012) 24 taxmann.com 81 (Mumbai – Trib.).

We have heard the rival contentions and perused the record. The limited issue which arises in the present appeal is against jurisdiction invoked by the Assessing Officer by issuing notice under section 148 of the Act and whether the same has been validly invoked. The original assessment in the

As per pre-amended provisions of section 151(1) of the Act, where the assessment order has been passed under section 143(3) of the Act, then no notice shall be issued under section 148 of the Act 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 issue of such notice. The proviso lays down that after expiry of four years from the end of relevant assessment year, satisfaction is to be obtained from the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner. The assessment in the case was completed on 19.07.2013 under section 143(3) of the Act. The Assessing Officer issuing the notice under section 148 of the Act is Income Tax Officer, Ward 10(3), Pune. Hence, under the provisions of section 151(1) of the Act, no notice under section 148 of the Act would be issued before obtaining the approval of JCIT, which in the present case was received after issue / receipt of the notice under section 148 of the Act. Such a notice issued under section 148 of the Act is thus, invalid in law.

The Hon’ble Bombay High Court in CIT Vs. Smt. Suman Waman Chaudhary (supra) had laid down that under section 151(2) of the Act, prior approval of the concerned authority was required to be taken before issue of notice under section 148 of the Act. Section 151(2) of the Act deals with cases where the assessment has not been completed under section 143(3) of the Act.

Applying the said ratio to the facts of present case, we hold that issue of notice under section 148 of the Act in the present case is annulled and consequent order passed under section 143(3) r.w.s. 147 of the Act cannot stand. The learned Departmental Representative for the Revenue had placed reliance on the order of Mumbai Bench of Tribunal in Laxminarayan Agarwal (HUF) Vs. ITO (supra), wherein the jurisdiction of notice issued under section 148 of the Act was challenged after expiry of eight years from the date of notice, which is not the case before us and hence, not applicable. The ground of appeal No.2 raised by assessee is thus, allowed. All the other grounds of appeal would become academic.

In the result, appeal of assessee is allowed.