RASHMI BANSAL,SAHARANPUR vs. ITO, WARD- 3, SAHARANPUR
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Income Tax Appellate Tribunal, DELHI BENCH: ‘SMC’ NEW DELHI
Before: SHRI SAKTIJIT DEY
IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI BENCH: ‘SMC’ NEW DELHI
BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA No. 6278/Del/2017 Assessment Year: 2010-11
Smt. Rashmi Bansal, W/o Vs. Commissioner of Income Tax, Dr. (Sh.) R N Bansal, C/o Muzaffarnagar Bansal Hospital, Bajoria Road, Saharanpur-247001, UP PAN :ABRPB2126Q (Appellant) (Respondent)
Appellant by Shri Sushil Kumar, Adv. Respondent by Shri Pm Prakash, Sr. DR
Date of hearing 22.03.2023 Date of pronouncement 31.03.2023
ORDER This is an appeal by the assessee against order dated 29.07.2017
of learned Commissioner of Income-Tax (Appeals), Muzaffarnagar.
Vide letter dated 21.01.2023, the assessee has raised the
following additional grounds under Rule 11 of the Income-Tax
(Appellate Tribunal) Rules, 1963:
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That on the facts and circumstances of the case the Ld. Assessing Officer erred in law issued notice u/s 148 without obtaining the mandatory approval u/s 151 from the concerned officer. 2. That on the facts and circumstances of the case the Ld. Assessing Officer erred in law by recording ambiguous reasons, merely stating that long term capital gains which was not shown by the assessee has assessment without disclosing the valid reasons which led the Assessing Officer to take action under Section 147/148 of the Act. 3. The appellant craves leave to add, alter, amend or vary from the above grounds of appeal t or before the time of hearing.
Since, in the additional grounds, the assessee has raised purely
legal and jurisdictional issues going to the root of the matter and since
such issues do not require investigation into fresh facts, I am inclined
to admit the additional grounds.
As could be seen from the additional ground no.1, the assessee
has taken a specific plea that notice under Section 148 of the Income-
Tax Act,1961 was issued without obtaining prior approval of the
higher authorities in terms of section 151 of the Act.
Briefly, the facts are, the assessee is a resident individual. For
the assessment year under dispute, assessee filed her return of income
on 05.07.2010 declaring income of Rs.3,03,670. Subsequently, the
Assessing Officer received information that though the assessee had
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sold immoveable property during the year, however, she has not
offered capital gain to tax. Therefore, he reopened the assessment
under Section 147 of the Act by issuing a notice under Section 148 on
18.02.2015. Ultimately, the Assessing Officer completed the
assessment under Section 143(3)/148 of the Act vide order dated
23.02.2016 by adding short term capital gain of Rs.21,69,496. Against
the assessment order so passed, the assessee preferred an appeal
before learned Commissioner (Appeals). However, the appeal was
dismissed.
I have heard Shri Sushil Kumar, learned counsel appearing for
the assessee and Shri Om Parkash, learned senior Departmental
Representative.
The specific contention of learned counsel appearing for the
assessee, qua, additional ground no.1 is, prior to issuance of notice
under Section 148 of the Act, the Assessing Officer had not obtained
any approval of the higher authorities in terms of section 151(2) of the
Act. It is observed, while taking note of the aforesaid pleading of the
assessee, the Bench vide order dated 13.01.2023 had directed the
Assessing Officer to submit a report indicating whether approval
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under Section 151 of the Act was obtained prior to issuance of notice
under Section 148 of the Act.
Though, the Assessing Officer has not furnished any report,
however, the assessment records are made available to the Bench
through learned Departmental Representative. On careful perusal of
the assessment records, it is observed that there is no such approval of
the higher authorities in terms of section 151(2) of the Act available in
the assessment record. Further, neither, there is any order sheet entry
or any other documents available in the assessment record which can
indicate that the Assessing Officer had obtained approval under
Section 151(2) of the Act prior to issuance of notice under Section 148
of the Act. In fact, learned Departmental Representative could not
controvert the aforesaid factual position.
It is further relevant to observe, in response to a letter of the
assessee seeking various information including copy of approval, if
any, under Section 151 of the Act, the Assessing Officer in letter dated
19.12.2022 has simply mentioned “not applicable”. Even, in the notice
dated 18.02.2015 issued under Section 148 of the Act, the Assessing
Officer has not even pointed out that approval was taken under
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Section 151(2) of the Act. Rather, on perusal of the original notice
issued under Section 148 of the Act, a copy of which is available in
the assessment record, it is seen that the Assessing Officer has struck
off the paragraph with reference to the approval under Section 151 of
the Act. The aforesaid facts available on record, clearly demonstrate
that prior to issuance of notice under Section 148 of the Act, the
Assessing Officer has not obtained any approval of the higher
authorities in terms of section 151(2) of the Act. On a reading of
section 151 of the Act, it is very much clear that before issuance of
notice under Section 148 of the Act, approval of the higher authorities
is a mandatory statutory requirement.
In the facts of the present appeal, it is evident that the Assessing
Officer has failed to follow such mandatory requirement in law. That
being the factual position emerging on record, the issuance of notice
under Section 148 of the Act is wholly without jurisdiction. Therefore,
the proceedings initiated in pursuance to such notice culminating in
the impugned assessment order, is also without jurisdiction. Therefore,
I have no hesitation in declaring the assessment order null and void.
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Accordingly, the impugned assessment order is quashed and the order
of learned Commissioner (Appeals) is set aside.
In view of my decision on the legal issue, the other grounds
raised by the assessee have become academic, hence, do not require
adjudication.
In the result, the appeal is allowed as indicated above. Order pronounced in the open court on 31st March, 2023. Sd/- (SAKTIJIT DEY) JUDICIAL MEMBER Dated: 31st March, 2023. Mohan Lal
