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Income Tax Appellate Tribunal, DELHI BENCH “E” BENCH NEW DELHI
Before: SHRI G. D. AGRAWAL & SHRI AMIT SHUKLA
ORDER
PER AMIT SHUKLA, JUDICIAL MEMBER:
The aforesaid appeal and cross objection has been filed by the revenue as well as by the assessee against impugned order dated 01.01.2012, passed by the Ld. CIT(Appeals), Meerut for the quantum of assessment passed u/s 148/143(3) for the A.Y. 2004-05.
In the grounds of appeal
the revenue has raised following grounds:-
1. Whether in the light of facts of the case the Ld. Commissioner of Income Tax (Appeals) has erred in law in quashing the notice u/s 148 of IT Act, 1961 by holding that Page 1 of 12 belief of A.O. in respect of escapement of income, formed on the basis of information received from Investigation Wing, tantamount to change of opinion whereas reassessment on the basis of new material does not tantamount so.
2. Whether in the light of facts of the case Ld. Commissioner of Income Tax( Appeals) has erred in law in quashing thenotice u/s 148 of IT Act, 1961 alleging that no sanction was obtained by the A.O. fromcompetent Authority u/s 153 of IT Act, 1961 before issuing notice u/s 148 of the IT Act,1961without verifying that such sanction was duly obtained from CIT, Meerut vide her office letter dated 23.03.2011 and after t hat notice u/s 148 of the IT Act 1961 was issued on 23.03.2011.
3. Whetherin thelightoffactsofthe case Ld.Commissionerof IncomeTax(Appeals) has erred in law in quashing the notice u/s 148 of IT Act, 1961 by holding that reassessment proceedings were in violation of section 158A of IT Act, 1961 whereas assessee did not make any valid claim before the A.O. in prescribed form No-8 under sub sec(1) of sec. 158A of IT Act, 1961 r/w Rule 16 of IT Rules, 1962.
4. Whether in the light of facts of the case Ld. Commissioner of Income Tax(Appeals) has erred in law in deleting the addition of Rs. 1,05,00,000/- made by the A.O. u/s 68 of IT Act, 1961 by holding that creditworthiness of companies making investment as share application money stands proved ignoring the enquiries made by the A.O. which proves the investing companies as bogus. Reliance is placed onCIT Vs Nova Promoters and Finlease (P) Ltd. 18 Taxman 217(2012) (Delhi). 5.That the appellant craves leave to add, modify and/or delete any ground(s) of appeal.
6. In the facts and circumstances of the case the order of the Commissioner of Income Tax (Appeals) may be set aside and that of the A.O. restored.
Whereasin the Cross Objectionsthe assessee has raised following grounds:-
On the facts and the circumstances of the case and in the law the proceedings u/s 148 are barred by limitation under Proviso to 147 of the Act and so must be quashed in-limine.
4. The main ground raised by the revenue is that, the Assessing Officer had not obtained sanction from the competent authority before issuing notice u/s 148. The relevant facts qua this issue are that, the assessee company had filed its original return of income on 25.10.2004 u/s 139(1) declaring loss of Rs. 48,41,805/-. Such return of income was subjected to scrutiny and assessment order u/s 143(3) was passed on 27.12.2006 on a total loss of Rs. 23,41,804/-, thereby making an addition of Rs. 25 lac on account of unexplained cash received from 5 persons. Thereafter, on receipt of information from Directorate of Income Tax (Investigation), New Delhi, wherein it was informed that during the relevant year the assessee had taken accommodation entries from certain parties for sums aggregating to Rs.1,30,00,000/-and on the basis of such information, the Assessing Officer recorded his “reasons” and issued notice u/s 148 on 23.3.2011 for reopening the assessment u/s 147. On a perusal of the “reasons recorded” by the Assessing Officer it is noticed that AO (Assistant Commissioner of Income Tax, Circle-2, Meerut), has incorporated the information/report received from the Investigation Wing, New Delhi and observed that he has reason to believe that income of Rs.1,30,00,000/-has escaped assessment. Neither in the “reasons recorded” nor in the notice there is any mention or whisper about any approval from the Competent Authority which here in this case should be Commissioner of Income Tax in terms of then existing provisions of section 151(1) as the original assessment order was passed under 143(3) and notice has been issued beyond the period of 4 years from the end of the relevant Page 3 of 12 assessment year. Before the Learned CIT(Appeals), the assessee has raised this specific point and Learned CIT(Appeals) has given a categorical finding that the Learned CCIT/CIT has not accorded any approval or sanction to the fact that it is a fit case for issue of notice u/s 148. The relevant submission of the assessee and the finding of the Learned CIT(Appeals) in this regard for the sake of ready reference is reproduced here under:-
“8.2 AR’s submissions: '‘That from a bare perusal of the reasons recorded for issuing notice U/S 148(Copy placedon record) andthe notice issued U/S148 (Copy placed onrecord) it is clearthat no sanctionhas beentaken in terms of proviso to section151(1) of the Income Tax Act, 1961 and hence on this ground alone, the very notice U/S 148 are void-ab-initio and the assessment proceedings thereafter, are hence, rendered infructuous and illegal.It is, therefore, prayed that on this ground alone, the assessment order be quashed.” 8.3. Decision and reasons therefor: The second innings of reassessment in this case began with the initiation of notice U/S148 on 23-3-2011which in turnpropelled the assesseeto prefer preliminaryobjections dated 13.5.2011 against issueof noticeitself, a copyof which is on recordwith me as well.I find that on page 2,para12, the assessee has categorically raised theissue of thenotice being time barred andfurtherbarredu/s151(1) of theIncomeTax Act,1961.The AO has an inherent duty to pass a separate speaking order disposing of these objections if raised initially by the assessee. This is a categorical and calculated failure on the part of the AO not to have done so. It assumes further importance because at the first stage itself, the assessee had raised objections to the issue of notice and its validity itself. Had the AO applied himself, the department as well as the assessee would have been saved of going through the rigours of the assessment proceedings. This Page 4 of 12 I say because in this matter assessment was initially done, u/s 143(3) on 29.12.2006 and in terms ofProviso to section 151(1) of the Income Tax Act, 1961, the notice could have beenissued only until the expiry of four years from the end of the relevant assessment year i.e.31.3.2010. Since the notice was issued on 23.3.2011, it is badly time barred. However,this notice could have been considered to have been in time if the CCIT or the CIT wouldhave accorded sanction to the effect that it was a fit case for issue of such notice. Neitherthe notice u/s 148 nor the assessment order makes a mention of such sanction.Hence, I hold that the notice is bad in law and all proceedings thereafter,culminating in the assessment order, are illegal. The notice u/s 148 and the subsequentassessment are, therefore, quashed.”
Ld. Sr. DR before us had produced the assessment records and also filed photo copies of “Form” for recording the reasons for initiating the proceedings u/s 148 and for obtaining the approval of the Addl.CIT/CIT, Range-2, Meerut. From the approval form, he pointed out that there is an initial of Ld. Commissioner of Income Tax, Meerut, which goes to show that he has duly given his approval/sanction for issuance of notice u/s 148. He also filed a copy of letter dated 20.3.2010 addressed by ITO (Hqrs.) for CIT, Meerut addressing the Assessing Officer that the Ld. CIT has approved the proposal of issuance of notice of u/s 148. In wake of this factual record, he submitted that the observations and finding of the Ld. CIT(Appeals) is erroneous and thus, contrary to the facts and therefore, such a finding should be reversed.
We have considered the relevant material placed before us and the finding of Ld. CIT (A) specifically on the issue of sanctionof notice u/s 148 by the competent authority as raised by the revenue. Here in this case the original assessment order for the impugned assessment year 2004-05 was passed u/s 143(3) vide order dated 27.12.2006 and notice u/s 148 has been issued on 23.3.2011, which isafter the expiry of 4 years from the end of the relevant assessment year, therefore, for sanction of issue of notice u/s 148 had to be given by the CCIT/CIT as per the then existing provision contained u/s 151(1) read with Proviso. The Proviso to section 151(1) clearly provide that in case where the assessment has been made u/s 143(3)for the relevant assessment year, then after expiry of four years from the end of the relevant assessment year no such notice shall be issued unless the CCIT/CIT is satisfied on the ‘reasons recorded’ by the Assessing Officer that it is a fit case for issue of notice u/s 148. The then relevant provision for the sake of ready reference is as under:-
“151(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, unless the Deputy 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 such notice shall be issued unless the Chief Commissioner 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.”
From the plain reading of the aforesaid provision it is absolutely clear that the law mandates that ‘satisfaction’ of the Chief Commissioner or Commissioner of Income Tax on the ‘reasons recorded’ is mandatory before issuance of notice u/s 148 by the Page 6 of 12 Assessing Officer. If before issuing such a notice,no sanction or approval on such reasons has been accorded by way of satisfaction of the CCIT/CIT, then Assessing Officer cannot issue notice u/s 148 for acquiring the jurisdiction u/s 147 for reopening the assessment after expiry of four years from the end of the relevant assessment year. Thus, the satisfaction of the CCIT/CIT on the ‘reasons recorded’ is sine qua non for issuance of notice u/s 148.
Now from the perusal of the ‘Form’ of approval submitted by the ld. DR, we find that against the column no. 12 which mentions about the satisfaction of the various authorities on the reasons recorded by the ITO/ACIT that it is a fit case of issue of notice u/s 148, there is specific approval mentioning that it is a fit case for reassessment u/s 147 r.w.s 148 and below such remark there signatureof Addl.CIT, Range-2, Meerut. This goes to show that Addl. CIT, Range -2 Meerut has given his approval. However further below the signature of Addl. CIT, another column 13 has been added/inserted by way of hand writing which states,“whether the Commissioner is satisfied on the reasons recorded by the Assessing Officer that it is a fit case for issuance of notice u/s 148 of the Income Tax Act”, there is an initial of CIT, Meerut with his seal. For the sake of ready reference scan copy of the entire approval form is pasted here in below:-
From a bare perusal of the aforesaid form it is seen that up till point no. 11 various information have been given and below these information there is a signature of Asst.CIT, Circle-2, Meerut. Thereafter in point no. 12 which mentions, “whether the Addl.CIT/CIT/Board is satisfied on the reasons recorded by ITO/ACIT for it is fit case for issue of a notice u/s 148, there is an approval of the Addl.CIT with his signature stating that it is a fit case for reassessment u/s 148 read with section 147”. As against point no. 13, there is no such approval or satisfaction of the Ld.CIT Meerut neither there is any mention about his satisfaction or approval in words or any kind of indication of his satisfaction about his approval, albeit there is a simple initial with his seal. Such an initial does not reveal in any manner as to whether he was satisfied on the reasons recorded that it is a fit case for reassessment or issuance of notice u/s 148 or he was not satisfied on such reasons that no such notice can be issued. Mere initial without sanctioning any approval and satisfaction can be inferred in both ways, that is, either he was satisfied on the reasons recorded or he was not satisfied. Provisions contained in section 151(1) clearly mandates that the Ld.CCIT or CIT has to express his satisfaction on the reasons recorded and such satisfaction has to be implicit in words and not on the basis of any kind of presumption or inference to be drawn from mere signature/initials. Here on perusal of the aforesaid Approval Form one cannot draw any categorical inference, whether the Ld. CIT has actually given his approval or his satisfaction on the reasons recorded by the Assessing Officer. In fact it is the Addl.CIT Range 2, Meerut who has given his satisfaction/approval on the reasons recorded by the ACIT Circle 2 Meerut (AO). There cannot be two satisfaction or approval by two different authorities, one by the Page 10 of 12 Addl.CIT who is not the competent authority in terms of Proviso to section 151(1) and again by a CIT who is simply appended his initials. Thus, we are of the considered opinion that there is no satisfaction or approval of the CIT on the reasons recorded by the Assessing Officer that it is a fit case for issuance of notice u/s 148; and accordingly, in absence of such mandatory requirement of the law for acquiring the jurisdiction for reopening the assessment, the entire proceedings initiated by the issuance of notice u/s 148 gets vitiated and has to be declared as null and void. Accordingly, we quash the impugned notice u/s 148 dated 23.3.2011 on the ground that no proper approval or satisfaction has been given by the CIT on the reasons recorded by the Assessing Officer. Thus, we uphold the order of the Ld. CIT(Appeals) in quashing the assessment on this ground. In the result, the appeal of the revenue is dismissed on this point.
In view of the finding given above the ground raised by the assessee in the cross objection is dismissed as infructuous.
In the result both the Revenue’s appeal as well as assessee’s Cross Objection are dismissed.
Order pronounced in the open court on 10.07.2017.