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Income Tax Appellate Tribunal, “SMC”, BENCH MUMBAI
Before: SHRI R.C.SHARMA, AM
आदेश / O R D E R PER R.C.SHARMA (A.M): This appeal filed by the assessee against the order of CIT(A)-42, Mumbai dated 14/06/2017 for A.Y.2007-08 in the matter of order passed u/s.143(3) r.w.s.147 of the IT Act. 2. The following grounds have been taken by the assessee:- 1) The Learned Assessing Officer erred in issuing Notice u/s. 148 without obtaining appropriate sanction/approval as required by Provisions of Section 151 of the Income Tax Act and therefore the Notice is bad in law and void ab initio. Consequently, the Assessment Order passed u/s. 143(3) r.w.s. 141 deserves to be annulled. 2) The learned Commissioner of Income Tax (Appeals) erred in confirming the Reopening of assessment u/s.143(3) r.w.s. 147 without appreciating that the learned Assessing Officer had not brought any fresh tangible material on record moreover, when the original assessment was already completed u/s. 143(3).
M/s. Adinath Metals 3) The learned Commissioner of Income Tax (Appeals) erred in confirming the Reopening of assessment u/s.147 on the basis of Reasons Recorded in respect of information received from DIT- (investigations) and without independent application of mind. 4) The learned Commissioner of Income Tax (Appeals) erred in confirming the addition of Rs.49j4,022/- u/s.690 without appreciating that the Purchases were already recorded in the books of accounts and therefore Section 69C itself is not applicable and therefore the addition is bad in law. 5) The learned Commissioner of Income Tax (Appeals) erred in confirming the addition of Rs.32,91,824/- being 100% of the Purchases made from two Parties without any basis and even not providing the copy of the Statement Recorded before the Sales Tax Department or cross-examine the appellant and therefore the same is bad in law. 6) The learned Commissioner of Income Tax (Appeals) further erred in confirming the addition of Rs.16,22,198/- being 12.5% of Rs..1,29,77,583/- in respect of certain Parties purported to be bogus. The Appellant craves the leave to add, amend, alter and/or delete' any of the above grounds of appeal at/or before the time of hearing.
3. It was argued by learned AR that the Learned Assessing Officer erred in issuing Notice u/s.148 without obtaining appropriate sanction/approval as required by Provisions of Section 151 of the Income Tax Act and therefore the Notice is bad in law and void ab initio. Consequently, the Assessment Order passed u/s.143(3) r.w.s 147 deserves to be annulled.
4. He further contended that since the original assessment was passed u/s.143(3), the provisions of Section 151 are applicable which reads as under:- (1) In a case where an assessment under sub-section (3) of section 143 or section 147 has been made for the relevant assessment year, no notice shall be issued under section 148 by an Assessing Officer, who is below the rank of Assistant Commissioner or Deputy Commissioner M/s. Adinath Metals 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 exoirv of four years from the end of the relevant assessment year, no such notice shall be issued unless the Chief Commissioner or Commissioner is satisfied, on the reasons recorded bv the Assessing Officer aforesaid, that it is a fit case for the issue of such notice
5. As per learned AR, sanction obtained by the AO from Joint Commissioner of Income Tax only. Therefore, there is no sanction obtained of commissioner of income tax as required by proviso to Section 151(1). Accordingly reopening was not valid. In this regard reliance was placed on the following judgements. - SPL'S Siddhartha Ltd, [2012] 345 ITR 223, Honorable High Court of Delhi . - DSJ Communication Ltd, 41 taxmann.com 151, Honorable High Court of Bombay - Vinay Enterprises, Honorable ITAT Mumbai