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2012 (11) TMI 506

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..... her authority then it goes to the very root of proper assumption of jurisdiction by the authority which was required to take that sanction. This is purely legal issue and can be raised at any stage of proceeding - Hon'ble Delhi High Court in the case of CIT VERSUS SPL‟S SIDDHARTHA LTD (2011 (9) TMI 640 - DELHI HIGH COURT) has quashed the reassessment proceedings for want of sanction of Joint Commissioner of Income tax when it was so required as per section 151(2) - appeal decided in favour of assessee. - IT Appeal No. 2582 (Delhi) of 2011 - - - Dated:- 30-8-2012 - U.B.S. Bedi And S.V. Mehrotra, JJ. Amit Goel for the Appellant. Smt. Surjani Mohanty for the Respondent. ORDER S.V. Mehrotra, Accountant Member - This appeal filed by the assessee is against the order dated 25-02-2011 of the Ld. CIT(A)-XII, New Delhi for AY 2001-02. 2. Brief facts of the case are that the assessee filed its return of income on 31.10.2001 declaring total income of Rs.12,87,140/-. The Assessing Officer has observed that this return was processed u/s 143(1) of the Income Tax Act, 1961 on 15.05.2002. Thereafter, the case was reopened by serving notice u/s 148 of the Income .....

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..... 2012] 345 ITR 223 wherein it was held that u/s 151 of the Act, it was only the Joint Commissioner or Additional Commissioner who could grant the approval of issue of notice u/s 148. Where the approval was not granted by the Joint Commissioner but by Commissioner of Income Tax, this is not irregularity curable u/s 292B. It was held that the notice was not valid. 5. Ld. DR submitted that in the case of SPL'S Siddhartha Ltd., the facts were different. She submitted that in the said case, the matter was routed through the Additional Commissioner of Income tax but in the present case, it was not so routed. On 25.07.2012, when the case was taken up for hearing, Ld. DR was directed to call for assessment records along with approval for issuing notice u/s 148. Ld. DR produced the said approval on the date of hearing i.e 26.07.2010 which reads as under :- No. ITO/Ward 9(3)/Asstt./2007-08/27 Office of the Income Tax Officer, Ward 9(3), Room No-180, C.R. Building, I.P. Estate, New Delhi-110002. Dated 28/03/2008 To, The Commissioner of Income Tax, Delhi-III, New Delhi. (Through Proper Channel) Sir, Sub:- Approval of Issue of Notice u/s 148 of the I.T. Act, 1961 .....

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..... (Income Tax Officer) Ward 9(3), New Delhi 10. Whether the Commissioner of Income tax is satisfied on the reasons recorded by the ITO Ward 9(3) that it is a fit-case for issue of notice u/s 148. Date: Commissioner of Income Tax Delhi-III, New Delhi. Issue of notice u/s 148 of the I.T. Act, 1961 in the case of M/s Sun Ind Investments and Technologies Pvt. Ltd. (now as per confirmation from the bank beneficiaries name is M/s Sunint Investments and Technologies Pvt. Ltd) for the A.Y 2001-02-reg.. Information about entry operators and their beneficiaries of Delhi has been received from the DIT (Investigation)-I, New Delhi through the Addl. Commissioner of Income Tax, Range-9, New Delhi vide letter No. Addl. CIT/Range-9/2005-06/2134 dated 13.03.2006 alongwith lists such entry operators and beneficiaries. After making inquiries the Directorate of Investigation in their report has established large amount of tax evasion in the transactions between entry operators and the beneficiaries. It is revealed from the CD information that the assessee company M/s Sun Ind Investments Technologies Pvt. .....

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..... ss the income escaped as stated hereinabove. (A.N. Verma) Income Tax Officer Ward 9(3), New Delhi 6. With reference to aforementioned documents, she submitted that Assessing Officer took the approval of Ld. CIT in order to be more cautious. 7. Ld. Counsel submitted that since it is admitted that assessment records were not available with Assessing Officer, it is not clear as to how Assessing Officer acquired the requisite belief regarding escapement of income. He further submitted that in the case of SPL'S Siddhartha ltd. (supra), the objection was not raised before the Assessing Officer. 8. We have considered the submissions of both the parties and have perused the records of the case. Admittedly, the return was processed u/s 143(1), as per the assessment order, on 15.05.2002 and the notice u/s 148 was issued on 28.03.2008. Therefore, as per section 151, the Assessing Officer was required to obtain the sanction of Joint Commissioner of Income tax as four years had lapsed from the end of relevant assessment year. The department's contention is that assessee did not raise any objection before the Assessing Officer on this issue and the only objection raised was in regard .....

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..... ed by the Assessing Officer and was rectifiable under section 292B of the Act, has not been found convincing by the Tribunal. ** ** ** Thus, if authority is given expressly by affirmative words upon a defined condition, the expression of that condition excludes the doing of the Act authorized under other circumstances than those as defined. It is also established principle of law that if a particular authority has been designated to record his/her satisfaction on any particular issue, then it is that authority alone who should apply his/her independent mind to record his/her satisfaction and further mandatory condition is that the satisfaction recorded should be "independent" and not "borrowed" or "dictated" satisfaction. Law in this regard is now sell-settled. In Sheo Narain Jaiswal v ITO [1989] 176 ITR 352 (Patna), it was held: "Where the Assessing Officer does not himself exercise his jurisdiction under section 147 but merely acts at the behest of any superior authority, it must be held that assumption of jurisdiction was bad for non-satisfaction of the conditions precedent." The Apex Court in the case of Anirudhsinhji Karansinhji Jade .....

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