TMI Blog2012 (9) TMI 522X X X X Extracts X X X X X X X X Extracts X X X X ..... of CIT-2, Mumbai.” There is not a whisper about the Additional Commissioner or the Joint Commissioner having granted the approval. The alleged approval therefore, in any event, is contrary to the provisions of section 151 and therefore notice reopening the assessment cannot be sustained in law - Decided in favor of assessee - WRIT PETITION NO.722 OF 2011 - - - Dated:- 13-9-2012 - S.J. VAZIFDAR AND M.S. SANKLECHA, JJ. Mr.Salil Kapoor with Mr.Satendra Kumar Pandey i/b Mr.Jitendra Singh for the Petitioner. Mr.Vimal Gupta for the Respondents. P.C. :- 1. The petitioner has sought inter-alia a writ of certiorari to quash a notice under section 148 of the Income Tax Act, 1961 dated 28.1.2004 issued by respondent No.1 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... completing the assessment. It was further contended before the Tribunal that in spite of a specific request by a letter dated 16.3.2004, respondent No.1 had not furnished the reasons recorded for issuing the impugned notice. The Tribunal by an order dated 30.9.2010 set aside the order of the AO in view of the absence of the respondents having communicated the reasons for the impugned notice. The Tribunal remanded the matter to the AO with a direction to communicate the reasons for re-opening the assessment and thereafter to pass a fresh order after considering the petitioner's objections thereto, if any. The appeal before the Tribunal was accordingly disposed of. 6. Subsequently, under cover of a letter dated 10.2.2011, the reasons were f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner is satisfied, on the reasons recorded by such Assessing Officer, that it is a fit case for the issue of such notice. Explanation. For the removal of doubts, it is hereby declared that the Joint Commissioner, the Commissioner or the Chief Commissioner, as the case may be, being satisfied on the reasons recorded by the Assessing Officer about fitness of a case for the issue of notice under Section 148, need not issue such notice himself. Mr.Kapoor submitted firstly that the approval as required by section 151 had not been obtained. Secondly, he submitted that in any event, even according to the respondents, the approval of the CIT-2 was obtained. In other words, admittedly, the approval of the Joint Commissioner was not taken. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act granted his approval. In any event, if he had in fact granted approval, it was for the respondents to produce the same. The respondents cannot merely rely upon their interpretation of a submission by the petitioner in this regard. At the cost of repetition, the respondents have failed to produce the approval of the Additional Commissioner or the Joint Commissioner either in the affidavit in reply or even otherwise, although they were granted an opportunity of doing so. Whether the approval was granted or not is an objective fact which can be established only by producing the approval. It is not the respondents' case that the approval was in fact granted, but is misplaced. 10. Indeed the respondents' case is to the contrary. In paragra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner of Income Tax under Section 117(1). In the present case, the record before the Court indicate that the Assessing Officer submitted a proposal on 28 March 2011 to the CIT(1) Thane through the Additional Commissioner of Income Tax Range (I) Thane. On 28 March 2011, the Additional CIT forwarded the proposal to the CIT and after recording a gist of the communication of the Assessing Officer stated that : As requested by the A.O. Necessary approval for issue of notice u/s. 148 may kindly be granted in the case, if approved. On this a communication was issued on 29 March 2011 from the office of the CIT (1) conveying approval to the proposal submitted by the Assessing officer. There is merit in the contention raised on behalf of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We are in respectful agreement with the judgment of the Delhi High Court. 7 In view of the findings which we have recorded on submissions (i), (ii) and (iv), it is not necessary for the Court to consider submission (iii) which has been urged on behalf of the Assessee. Once the Court has come to the conclusion that there was no compliance of the mandatory requirements of Section 147 and 151(2), the notice reopening the assessment cannot be sustained in law. 11. In view of the above conclusion, we did not permit Mr.Kapoor to advance any other arguments. It is therefore, also not necessary to consider the other prayers. 12. In the circumstances, Rule is made absolute in terms or prayer (a). There shall be no order as to cost. - - T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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