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2019 (7) TMI 21 - ITAT AHMEDABADReopening of assessment u/s 147 - approval of the higher authority u/s 151 - reason was recorded independently upon application of mind - HELD THAT:- The relevant documents being the reason recorded by the AO or the issuance of notice u/s 148 does not give any indication of obtaining sanction from the ACIT/JCIT by the AO for reopening the assessment of the assessee u/s 148 of the Act though in terms of the provision of section 151 it is the pre-condition for initiating proceeding u/s 148. Non-compliance of the same remains a defect which is admittedly not curable. We find that the Learned DR failed to controvert this particular aspect of the matter at the time of argument advanced before us during hearing. In that view of the matter in the absence of the very basis or foundation of the reopening being the “sanction of the higher authority” renders the entire proceeding void in law and thus liable to be set aside. Thus in our considered view, the Learned AO has made reopening on the dictates of superior authority and not of his own and without any application of mind; the same was done in tutored manner. AO admittedly failed to comply with the provision of Section 151. It appears from the records that he himself has accepted in assessment year 2010-11 that income was chargeable at the time of execution of sale deed. When in the original assessment the AO accepted the matter, reassessment proceeding cannot be initiated indicating a mere change of opinion. There must be a tenable material on the basis of which an assessment is sought to be reopened even within a period of four years is now well established in view of the judgment passed by the Hon’ble Supreme Court in the matter of CIT-vs-Kelvinator of India Ltd [2002 (4) TMI 37 - DELHI HIGH COURT] . The reason for reopening also indicates that time limit for issuance of such notice u/s 148 for A.Y. 2007-08 expires on 31.03.2014 which strengthen the case of the assessee showing that in order to reopen the assessment by hook and crook without the approval and/or sanction of the higher authority in terms of the provision of Section 151 AO in hot haste issued such notice for reopening that too in absence of any evidence to be relied upon to form such belief relating to the particular issue involved. Such action is erroneous, arbitrary and without due process of law and hence the entire proceeding initiated without any solid foundation of law is vitiated. Further that on the basis of the above discussion and observation we find the entire proceeding is void ab initio i.e. invalid from the very outset and therefore is liable to be quashed and hence the entire proceeding under section 148 as initiated by the revenue against the assessee is hereby quashed. Thus, assessee’s appeal is allowed.
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