SAROJ KUMAR MISHRA,BHUBANESWAR vs. ITO, BHUBANESWAR

This is an appeal filed by the assessee against the order of CIT(A)-1,

Bhubaneswar, dated 21.1.2011, for the assessment year 2005-06.

the assessee has filed a petition for admission of additional ground of

appeal, which is purely a legal issue and goes to the root of the matter and

prayed that the same may be admitted. The said additional ground of

appeal reads as under:

“That the initiation of proceeding u/s.147 of the Act is illegal and “contrary to the provisions of the Act as original assessment

2 ITA No. 187/CT K/ 2011 Asse ssment Year :20 05- 06

has been passed u/s.143(3) of the Act and the AO being below the rank of Assistant Commissioner has issued notice u/s.148 of the Act without taking sanction for issue of notice u/s.151(1) of the Act from Joint Commissioner of Income Tax and for which the assessment order passed on the basis of said notice is liable to be quashed.” 3. Ld D.R. had no objection to the admission of above additional ground

of appeal raised by the assessee.

assessee was admitted by the Bench and the parties were allowed to make

their submissions thereon.

u/s.148 of the Act for reopening of the assessment was issued by the ITO,

Ward 1(2), Bhubaneswar without prior approval of the Joint Commissioner

of Income Tax after recording the following reasons:

“Notice u/s.148 issued to the assessee calling for the return, as the income chargeable to tax escaped assessment as under: i) Difference on gross receipts and TDS certificate - Rs.8,03,646/- ii) Interest of Rs.1,75,785/- to be examined u/s.40(a)(ia). iii) Difference on bank account - Rs.19,000/- iv) To examine interior decorator u/s.40(a)(ia). 6. He submitted that as per the provisions of section 151(2) of the Act,

no notice shall be issued u/s.148 of the Act by the Assessing Officer, who

is below the rank of Joint Commissioner of Income Tax, 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. He argued that no

3 ITA No. 187/CT K/ 2011 Asse ssment Year :20 05- 06

approval of the Joint Commissioner has been obtained by the Assessing

Officer before issue of notice u/s.148 of the Act to the assessee and,

therefore, notice u/s.148 is bad in law and consequently, the order passed

pursuant to such notice is also bad in law and hence, should be cancelled.

records with him that no such approval of the joint Commissioner was

obtained by the ITO in the present case before issuance of notice u/s.148

of the Act to the assessee for reopening of the assessment.

considered view that as the notice issued u/s.148 of the Act to the assessee

is not in accordance with the provisions of section 151(2) of the Act i.e. the

required approval of the joint Commissioner was not obtained by the ITO

before issuance of notice u/s.148 of the Act, which fact has been very fairly

admitted by ld D.R. during the course of hearing, the impugned notice

issued u/s.148 of the Act is bad in law and the order passed pursuant to

such notice is also bad in law, therefore, I quash the reassessment order

passed u/s.147 of the Act dated 30.12.2009 and allow the ground of the

appeal of the assessee.

dated 30.12.2009, other grounds of appeal raised on the merits of the

addition by the assessee in the appeal have become only academic in

nature and hence, infructuous.

4 ITA No. 187/CT K/ 2011 Asse ssment Year :20 05- 06

Order pronounced in the open court on 26/05/2017 in the presence of parties. Sd/- (N.S Saini) ACCOUNTANT MEMBER Cuttack; Dated 26/05/2017 B.K.Parida, SPS Copy of the Order forwarded to : 1. The Appellant : Saroj Kumar Mishra, 162, 1st floor, Bapuji Nagar, Bhubaneswar. 2. The Respondent. ITO, Ward 1(2), Bhubaneswar 3. The CIT(A)-1, Bhubaneswar 4. Pr.CIT-1, Bhubaneswar. 5. DR, ITAT, Cuttack BY ORDER, 6. Guard file. //True Copy// SR.PRIVATE SECRETARY ITAT, Cuttack

5 ITA No. 187/CT K/ 2011 Asse ssment Year :20 05- 06

Date Initial 1. Draft dictated on 23/05/17 Sr.PS 2. Draft placed before author 23/05/17 (dictation Sr.PS pad has been enclosed along with original file) 3. Draft proposed & placed AM before the second member 4. Draft discussed/approved AM by Second Member. 5. Approved Draft comes to Sr.PS the Sr.PS/PS /PS 6. Kept for pronouncement on Sr.PS 7. File sent to the Bench Clerk Sr.PS 8. Date on which file goes to the H.C. 9. Date on which file goes to the SPS 10. Date of dispatch of Order.