SHRI KUNJBIHARI H. DESAI,GODHRA vs. THE INCOME TAX OFFICER, WARD-1, GODHRA

In the third ground of appeal, which we will take up first, the assessee has raised following grievance:- “3. The reassessment is also invalid and bad in law since as per notice u/s 148, the approval is given by CIT-III, Baroda and not by Joint CIT as required by Section 151(1) since reassessment is initiated within four years. It be so held now and reassessment order be annulled as held by jurisdictional Tribunal.” 3. When this appeal was called out for hearing, learned Counsel for the assessee invited our attention to a series of binding judicial precedents, including the Hon’ble Bombay High Court judgment in the case of DSJ Communication Ltd vs. DCIT, [2014] 41 taxmanm.com 151 (Bombay), wherein it is held that where the statute requires specific permission of the Joint Commissioner of Income-tax, for re- opening of the assessment, the permission granted by the higher authority cannot substitute for the same. Learned Counsel for the assessee, in the light of this legal position, invites my attention to the fact that notice dated 19.03.2012 issued by the Assessing Officer under Section 148 of the Act, which specifically states that “the notice is being issued after obtaining necessary satisfaction of the Commissioner of Income-tax-III, Baroda”. Learned Counsel submits that, as is evident from the plain reading of the notice, the approval for reopening of the assessment in the present

Learned Departmental Representative, on the other hand, submits that merely because approval has been given by the Commissioner of Income-tax, it does not mean that the Joint Commissioner concerned was out of the loop, because essentially the process for re-opening has to be routed through him. It would, therefore, be inappropriate to draw the conclusion that merely because the Commissioner has granted approval, the approval has not been granted by the Joint Commissioner. As a matter of fact, according to the learned Departmental Representative, it is inherent part of the process of approval being granted by the Commissioner that the approval is also given by the Joint Commissioner. He, however, fairly accepts that he is not able to demonstrate, even after consulting the case records, that a specific approval has been given by the Joint Commissioner. In brief rejoinder, learned Counsel for the assessee again points out that in the absence of specific approval given by the Joint Commissioner, which has to be demonstrated and not merely inferred, the reassessment proceedings cannot be sustained. 5. Having heard the rival contentions and having perused the material on record, I see merits in the plea taken by the learned Counsel. As held by Hon’ble Bombay High Court in the case of DSJ Communication Ltd (supra), the mere fact that the approval by the Commissioner, for reopening the assessment, is on record would not be sufficient to give legality to the reassessment proceedings where a specific prior approval of the Joint Commissioner is required. Respectfully following the esteemed views of Hon’ble High Court (supra) and in the absence of any contrary decision by Hon’ble jurisdictional High Court, the view so expressed by the Hon’ble High Court (supra) is fully binding upon us. I, therefore, uphold the plea of the assessee and quash the re-assessment proceedings as specific approval of the Joint Commissioner is not on record before me. The Ground No.3 is thus allowed. 6. The learned representatives fairly agree that once the reassessment proceedings are quashed, the other grievances raised by the assessee are academic and require no adjudication. Accordingly, the grievances raised in rest of the grounds are dismissed as infructuous. 7. In the result, the appeal is allowed as indicated above. Dictated and pronounced in the open court today on the 22nd November, 2017. Sd/-

Date of dictation: ......3 pages dictation pad attached….22.11.2017 2. Date on which the typed draft is placed before the Dictating Member: ..22.11.2017. ........ 3. Date on which the approved draft comes to the Sr. P.S./P.S.: .... 22.11.2017... . 4. Date on which the fair order is placed before the Dictating Member for Pronouncement:…. 22.11.2017.. 5. Date on which the file goes to the Bench Clerk : .. 22.11.2017... 6. Date on which the file goes to the Head Clerk : ……………………………. 7. The date on which the file goes to the Assistant Registrar for signature on the order: ……