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2023 (11) TMI 344 - BOMBAY HIGH COURTValidity of reopening of assessment - as argued notice u/s 148A(b) has been issued to a deceased person and even the order u/s 148A(d) is not a valid as sanction u/s 151 has been granted without application of mind - HELD THAT:- No notice u/s 148 of the Act can be issued without undertaking enquiry before assessment u/s 148A - We find this statement having been made twice in the affidavit in reply - It is rather obvious that no such enquiry has been made because if the AO had only made such an enquiry or even bothered to verify the Income Tax Portal relating to the deceased assessee, he would have certainly come to know that the assessee is deceased and had died on 23rd July 2020. The notice under Section 148A(b) of the Act has been issued without making the enquiry as mandated u/s 148A, thus is bad in law and has to be quashed and set aside. Invalid sanction u/s 151 - We agree that the approval applied for and granted u/s151 of the Act exposes the total non application of mind by the AO who applied for the approval, the Additional/Joint Commissioner of Income Tax who recommended granting of approval and the Principal Commissioner of Income Tax who granted the approval. We say this because Row 9 of the approval form, copy whereof can be found in the affidavit in reply, states “time limit for current proceedings covered under Section 149(1)(b) – for more than 3 years but not more than 10 years”. The assessment pertains to Assessment year 2019-2020, whereas the notice issued under Section 148A(b) of the Act is dated 29th March 2023 and, therefore, within the three years period. If we take Row 9 to be correct, then Row 7 indicates “the quantum of income which has escaped assessment – Rs.3 lakhs ”. Therefore, the notice issued under Section 148A(b) of the Act itself could not have been issued. Therefore, if only the AO who applied for approval under Section 151 of the Act had only read the approval form, he would have made the required corrections. If only the Additional/Joint Commissioner of Income Tax had read the approval form and the order under Section 148A(d) of the Act and the file relating to the matter, he would not have recommended granting of approval. So also the Principal Commissioner of Income Tax. If he had only read the file, he would have realised that if the time limit for current proceedings is covered under Section 149(1)(b) of the Act, i.e., for more than 3 years but not more than 10 years, he has no power to grant approval and the approval should have been granted by the Principal Commissioner of Income Tax. Reassessment proceedings quashed - Decided in favour of assessee.
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