Home Case Index All Cases Income Tax Income Tax + AT Income Tax - 2020 (1) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2020 (1) TMI 1673 - AT - Income TaxValidity of Revision u/s 263 when original assessment itself passed u/s 147/143(3) was bad in law and ab-initio-void - reopening beyond period of four years with no approval of the Commissioner or authorities specified in Section 151(1) - assessee argued as AO desires to reopen after the expiry of a period of four years from the end of the relevant assessment year, he could have issued notice u/s 148 of the Act only after taking approval from either Pr. Chief Commissioner or Chief Commissioner or Pr. Commissioner or Commissioner - HELD THAT:- As per sub-Section (1) of Section 151, no notice could have been issued u/s 148 of the Act by an AO, after the expiry of four years from the end of relevant assessment year unless the Pr. Chief Commissioner or Chief Commissioner or Pr. Commissioner or Commissioner is satisfied, on the reasons recorded by such AO, that it is a fit case for issue of such notice When the statute mandates the satisfaction of a particular functionary/authority for the exercise of a power, the satisfaction must be of that authority. So since the satisfaction/approval is not of any of the authorities given in sub-Section (1) of Section 151 of the Act, the notice issued by AO u/s 148 of the Act is without jurisdiction as a consequence the re-assessment framed by AO is null in the eyes of law and bad in law. Since the re-assessment order itself is bad in law and is non-est in the eyes of law, since the AO could not have issued the notice intimating the reopening u/s 148 without the approval of the Commissioner or authorities specified in Section 151(1) of the Act, the AO does not have the jurisdiction to issue the notice u/s 148 of the Act. Therefore the AO’s order itself is without jurisdiction and is null in the eyes of law. Thus impugned order of the Pr. CIT which is challenged before us is admittedly stemming from the order of the AO which we have already held to be null in the eyes of law. Therefore all consequential action on the basis of the order of AO is also null in the eyes of law. This is based on the legal maxim “Sublato Fundamento Credit Opus” meaning in case a foundation is removed, the super structure falls. In Badrinath Vs. TamilNadu[2000 (9) TMI 1044 - SUPREME COURT] as held that once the basis of proceedings is gone all consequential order and acts would fall in the ground automatically which is applicable to judicial and quasi judicial proceedings. Decided in favour of assessee.
|