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2019 (5) TMI 1795 - ITAT JODHPURReopening of assessment u/s 147 - Validity of reasons to believe - No sanction granted by the Commissioner u/s 151 - HELD THAT:- AO simply taking note of the ADIT(Inv.) letter has borrowed the satisfaction without independent application of mind to form reason warrant holding a belief that income chargeable to tax has escaped assessment. Just because a letter has been received from the ADIT(Inv.) the AO cannot reopen the assessment even if original assessment was u/s. 143(1) - AO based on the reasons recorded as set out above could not have initiated a fishing enquiry to find out the veracity of the information given by the ADIT(Inv.). The reasons recorded by AO does not stand the test as laid by plethora of judicial precedence as discussed above which is sine qua non to assume jurisdiction u/s 147 therefore, we find that the reasons recorded by the AO to justify reopening the assessment u/s. 147 fails and, therefore, the very assumption of jurisdiction to reassess the assessee falls. Since the AO failed to validly assume jurisdiction u/s. 147 the assumption of jurisdiction by him to re-open the assessment itself is qorum non judice and, therefore, all subsequent action is null in the eyes of law and therefore, we quash the reopening and consequent reassessment order framed by him. While challenging the legality of assumption of jurisdiction by the AO for reopening the assessment u/s. 147 of the Act, the assessee has also challenged the legality/validity of the approval granted by the Ld, Commissioner by only writing ‘I am satisfied’, which according to the Ld. AR, does not satisfy the requirement of law as laid in plethora of decisions, and, therefore, the approval of Commissioner since vitiated, the AO could not legally usurp the jurisdiction to reopen the assessment. We are not satisfied with the reasons recorded by the AO to reopen because it does not satisfy the condition precedent required to usurp jurisdiction under section 147, the approval could not have been given by Commissioner. We are of the opinion that the Commissioner has mechanically accorded permission which does not satisfy due care and circumspection and application of mind supposed to be exercised by a superior authority before according approval to AO. If only he had read the report and applied the mind on the reasons recorded by the AO justifying reopening, he would not have granted the permission. The safeguard against reopening u/s 151 of the Act has been done by the superior authority very lightly and as held by the Hon’ble Supreme court in Chugamal Rajpal [1971 (1) TMI 9 - SUPREME COURT] the authority substituted form over substance. Thus, we hold that the sanction granted by the Commissioner u/s 151 is invalid and so, the notice of the AO for reopening u/s. 148 is bad in law and has to be necessarily struck down. - Decided in favour of assessee.
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