TMI Blog2014 (2) TMI 790X X X X Extracts X X X X X X X X Extracts X X X X ..... lated by the proviso to sub-Section (1) of Section 151 of the Act is on record. Revenue could not point out any observation so as to hold that approval under Section 151 was obtained before issuing notice under Section 148 of the Act -In the absence of the order granting approval by the Commissioner under Section 151 or in the absence of any indication in the orders passed by the authorities including the order of the Tribunal or the materials on record that such approval was obtained, it would not be possible to assume that such approval under Section 151 of the Act was obtained - The provisions contained in Section 151 of the Act are indubitably mandatory in nature and since compliance was either not made or could be established by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fied in holding that reopening of the assessment was bad in law as the reasons recorded were not in the required format and the prior approval of the Commissioner had not been obtained in accordance with law? 3. We have heard the learned counsel for the parties and perused the relevant materials on record including the order of the Tribunal. 4. It appears to us that the Tribunal while dealing with the second question of law held that reopening of the assessment was bad in law as the reasons recorded were not in proper format as contemplated by sub- Section (2) of Section 148 of the Act and that the prior approval of the Commissioner under Section 151 for issuing notice under Section 148 of the Act was not obtained. Learned counsel for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mption that the Assessing Officer had recorded good and sufficient reasons as required under sub-Section (2) of Section 148 of the Act. Admittedly, neither the reasons recorded by the Assessing Officer under sub-Section (2) of Section 148 of the Act nor approval granted by the Chief Commissioner or Commissioner as contemplated by the proviso to sub-Section (1) of Section 151 of the Act is on record. 6. Mr.Aravind, learned counsel appearing for the revenue fairly submitted that the original record/file does not contain either the reasons under Section 148(2) or the approval granted by the Chief Commissioner or Commissioner under Section 151(1) of the Act. He placed the original file before us for our perusal. We also did not find those doc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee had raised the following ground of challenge: It is contended that the order of reassessment is bad in law and void- Ab-initio for want of requisite jurisdiction since the mandatory requirements to assume jurisdiction u/s. 148 of the Act did not exist and have not been complied with. It is on the basis of this ground of challenge, Mr.Shankar, learned counsel appearing for the assessee vehemently submitted that though such ground was raised, the Appellate Authority did not examine whether approval as contemplated under Section 151 of the Act was obtained. 8. On the other hand, Mr.K.V.Aravind, learned counsel appearing for the revenue invited our attention to certain observations made by the Assessing Officer and the Tribunal an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Section 151 of the Act are indubitably mandatory in nature and since compliance thereof was either not made or could be established by the revenue, in our opinion, benefit will have to be given to the assessee. Though we do not agree with all the reasons recorded by the Tribunal in the order, it has rightly decided the second question in favour of the assessee. We do not find any reason to interfere with the findings recorded by the Tribunal on the second question and hence, the appeal will have to be dismissed on this ground alone. Order accordingly. 9. Before we part, we observe that causing disappearance of certain documents from the record including reasons recorded by the Assessing Officer as contemplated by sub-Section 2 of Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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