ITO, NARNAUL vs. SMT. SARTI DEVI W/O SH. RATI RAM, MAHENDERGARH

Date of Hearing : 27 Date of Hearing : 27-10 10-201 2015 Date of Hearing : Date of Hearing : 27 27 10 10 201 201 Date of Order : Date of Order : 27 Date of Order : Date of Order : 27 27-10 27 10 10-201 10 201 2015 201 ORDER ORDER ORDER ORDER These Appeals filed by the Revenue emanate out of separate Orders, both dated 13.3.2014 passed by the Ld. CIT(A), Rohtak relevant to assessment year 2004- 05. Since the issues involved in these appeals are common, hence, we are diposing of these appeals by this common order for the sake of convenience, by dealing with (AY 2004-05) – ITO vs. Smt. Sarti Devi.

2. The following grounds have been raised in the Revenue’s Appeal:-

ITA NOS. 3098-3099/DEL/2014 tax (Appeals) has erred in law and facts in quashing the assessment order made uls 143(3)/147 with the observation that the notice uls 148 of the act was issued without obtaining approval from the Commissioner or Chief Commissioner of Income Tax whereas the approval was obtained from Addl. Commissioner of Income Tax: the Ld CIT(A) failed to appreciate the fact that this case is covered under section 151(2) and not under section 151(1) of the act, as no previous assessment was made in this case, hence the approval of satisfaction for issuance of notice uls 148 was rightly sought from Addl. Commissioner of Income Tax by the Assessing Officer. 2.That the appellant is filling appeal as the case is covered under the exception as per para 8(a) of instructions 3 of 2011 issued by CBDT.

3.That the appellant craves for the permission to add, delete or amend the grounds of appeal before or at the time of hearing of appeal.

3. The brief facts of the case are that Notice u/s. 148 for the AY 2004-05 was issued to the assessee on 28.3.2011 and in response to notice u/s. 148 the assessee did not file her return of income within the statutory time prescribed in the notice. Thereafter notice u/s. 142(1) was issued on 6.5.2011 asking the assessee to file her return of income on or before 10.6.2011. The assessee filed her return of income declaring income on 19.10.2011 declaring income of Rs. 14,884/-. This return wsa revised on 14.11.2011 declaring the same income under the head ‘income from other sources’ and agriculture income of Rs. 1,20,000/-. Notices u/s. 143(2) and 142(1) alongwith questionnaire were issued and assessment proceedings were attended by Sh. Rati Ram, husband of the assessee alongwith Sh. BL Gupta, Advocate of the assessee from time to time. Written replies were filed which have been consdiered and placed on record. The case was discussed and the assessment is completed u/s. 147/143(3) of the I.T. Act vide order dated 15.12.2011 and made the additions.

4. Against the above order dated 15.12.2011, assessee filed an appeal before the Ld. CIT(A), who vide impugned order dated 13.3.2014 has allowed the appeal of the assessee.

ITA NOS. 3098-3099/DEL/2014

“1. According to the Section 151(1) proviso which is as under:-

Provided that, after the expiry of 4 years from the end of the relevant assessment year, no such notice shall be issued unless the Chief Commissioner or the Commissioner is satisfied, on the reasons-recorded by the Assessing Officer aforesaid, that it is fit case for the issue of such notice

So according to this provision if the Assessing Authority who is below the rank of Assistant Commissioner or the Deputy Commissioner want to re- open the 'case after the expiry of 4 years unless the Commissioner is satisfied that it is a fit case for issue of that notice. In the present case the case is re- opened and a notice under section 148 is issued with the prior approval of Additional Commissioner of Income Tax Rewari and not with the approval of Commissioner. Additional Commissioner has been defined u/s 2(lC) and the Commissioner is defined under section 2(16). It is cardinal principle of law that when a statute mandates the satisfaction of a particular functionary for the exercise of power, satisfaction must of that authority only, where a statute requires something to be done in a particular manner it has to be done in that manner. If it is a case so that the notice was not valid and was liable to be quashed. The Additional Commissioner of Income Tax is not a Commissioner 3

ITA NOS. 3098-3099/DEL/2014 within the meaning of section 2(16). The approval in this case has been granted is not by the Commissioner of Income Tax but by the Additional Commissioner of Income Tax. There is no statutory provision here under which a power to be exercised by an officer can be exercised by another officer. My above said line of argument based on the authority of Ghanshyam K. Khabrani Versus Assistant Commissioner of Income Tax and others Division Bench 346 ITR 443. The Additional Commissioner of Income Tax can not be Commissioner of Income Tax within the meaning of section 2(16). The Bombay High Court has held "there is no statutory provision under which a power to be exercised by an officer can be exercised by a superior officer when the statutes mandates the satisfaction of particular functionary for the exercise of the power, satisfaction must of that authority. Where a statute requires something to be done in a particular manner, it has to be done in that manner only. An Authority of Delhi High Court was discussed by the Bombay High -Court and the Judges in Bombay High Court said we are in respectful agreement with the judgment of the Delhi High Court in case Commissioner of Income Tax Versus. SPL's Sidharth Limited Division Bench 345 ITR Page 223 (Delhi High Court) has clearly expressed their views that if statute requires a things to be done in a certain manner it shall be done in that manner alone and the court would not accept its being done in some other manner. If the statutory authority has been vested with the jurisdiction he has to be exercised it according to be its own discretion. The Delhi High Court in the above said judgment has also held that if it is not done that is if the approval is to be granted by Commissioner but the case is re-opened with the approval of Additional Commissioner. This was not irregularity curable under section 292 B. The notice was not valid. If the Assessing Officer exercised his jurisdiction under section 147 but merely act at the behest of any superior authority, it must be held that it is clear in this case in hand that Commissioner of Income Tax did not apply his mind or gave any sanction. The Additional Commissioner of Income Tax and Commissioner of Income Tax are quite separate authority. Delhi High Court has held "Section 116 of the Act also defines the Income Tax Authorities as a different and ITA NOS. 3098-3099/DEL/2014 distinct authority. Such different and distinct authorities have to exercise their powers in accordance with law as per power given to tdem in specified circumstances. If powers confirmed on a particular authority are arrogated by other authority without mandate law, it will create chaos in the administration of law and hierarchy of administration will mean nothing. Satisfaction of one authority cannot be substituted by satisfaction by another authority. It is tri that when a statute requires, the thing to be done in a certain manner, it shall be done in that manner alone and the court could not accept its being done in some other manner.

The Hon'ble Apex Court in case Anirudhsinh Ji Karan Singh Ji Jedeja Versus State of Gujrat (1995) 5 SSC 302 has held that if statutory authority has been vested with jurisdiction he has to exercise it according to its own discretion. If discretion is exercised under direction or in compliance with the some higher authorities in section then it will be case of failure of exercise discretion altogether.

Keeping in view of above said views expressed by the different High Court and Apex Court it is very much clear that the approval/ sanction to re- open the case and issued the notice u/ s 148 is to be of the same officer to whom law requires and not by the different officer. In the present case as per section 151 ( 1) proviso if the case is to be re-opened after expiry of 4 years the approval/ satisfaction should be of Commissioner of Income Tax only but in the present case the case is re-opened and notice 148 has been issued with the approval of Additional Commissioner of Income Tax who is different authority then the Commissioner of Income Tax as per section 2 of the Act and on this ground the notice issued under section 148 is bad in law and liable to be quashed.

ITA NOS. 3098-3099/DEL/2014 share of each member has been quantified. On receipt of this information the authority, have re-opened the case of Rati Ram Yadav and Sarti Devi may be in the status of HUF or at the most AOP. But the Assessing Officer instead of re- opening the case of joint person in the status of HUF or AOP has re-opened the case and notice issued under section 148 to one member of this joint account holder. Thus the re-opening of the case of the Rati Ram who is a one member of joint account holder is bad in law and if the Assessing Authority on the information of ACIT think it fit would have re-opened the case in the status of HUF or AOP. So on this ground too the re-opening of the case and issuing the notice to Rati Ram is bad in law and the notice liable to be quashed. Because there is no information with the Assessing Authority that Rati Ram whose case has been re-opened has some deposit in his own account which are liable to be taxed.

3. The only information on the basis of which the Assessing Authority re- opened the case is of ACIT Rewari. ACIT Rewari communicated is belief that there is a huge deposit in OBC Joint Account No.2239 of Rati Ram and Smt. Sarti Devi. The Assessing Authority have mentioned in the assessment order that I have reason to believe that an income to the tune of Rs.15,15,500/- + Interest Income and any other income chargeable to tax which may come to be knowledge subsequently during the course of assessment proceedings has escaped assessment for the assessment year 2004-05. Here and it is clear that there is no independent belief or reason to believe of Income Tax Officer about escapement of the Income Rs.15,15,500/- is belief or reason to believe qn the belief and reason to believe of ACIT Rewari. Except the reason to be believe of ACIT Rewari the Income Tax Officer / Assessing Authority has not made any independent enquiry or there was no independent reason believe that the income of the assessee to the tune of Rs.15,15,500/- has escaped assessment. As per provision of law before recording the reason to believe or issuing notice under section 148 there should be independent belief and reason to believe of the Assessing Authority here it is not there, so the notice on this ground too is void. 6

ITA NOS. 3098-3099/DEL/2014

Order pronounced in the Open Court on 27/10/2015.