TMI Blog2012 (8) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... : D.K. TYAGI, JUDICIAL MEMBER This is assessee s appeal against the order of ld. CIT(A)-XI, Ahmedabad dated 10.12.2004. 2. Ground No.1 is general in nature and does not require any adjudication. Ground No.2 reads as under:- In law and in facts and circumstances of the appellant s case, the ld. CIT(A) has erred in holding the reopening of the assessment as legal and justified. 3. Brief facts of the case are that a return of income was filed by the assessee showing income of Rs.73,97,050/- which was processed u/s 143(1) of the Act on 27.02.1999. Thereafter order u/s 154 was passed on 03.03.2000 and the revised income of the assessee was determined at Rs.64,51,555/-. Subsequently, assessment was reopened u/s 147 by issuing notice u/s 148 of the Act requiring the assessee to file return of income for the year under consideration. For reopening the A.O. took the statutory approval from the CIT. The assessee vide its letter dated 06.01.2004 submitted that the return of income filed for the year under consideration on 30.10.1996 may be considered as return filed in response to notice u/s 148 of the Act. The assessment u/s 143(3) read with Section 147 of the Act was finali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wherever the legislature intended that the higher authority grant approval it has used the word 'approval' for e.g. in section 131(3) ,132(8), 133A etc. Similarly wherever the legislature intended that the higher authority accord 'sanction' it has used the word 'sanction' for e.g. in section 279. Reliance placed on Maulvi Hussein Haji Abraham vs the Sate of Gujarat AIR 2004 SC 3946 b. The legal meaning of the three words 'satisfied', 'approval' and 'sanction' is well settled. As per the Wharton's Concise Law Dictionary the word 'satisfied' means being free of anxiety, doubt, perplexity, suspense or uncertainty. Whereas 'approval' means 'to have or express a favorable opinion or to accept as satisfactory'. As against this 'sanction' requires an independent perusal facts and record and also the recital of the reasons for granting approval. A bare perusal of the forwarding letter of the Addl. CIT shows that while forwarding the Performa to the CIT he was definitely free of anxiety, doubt, perplexity, suspense or uncertainty and hence the statutory requirement of the Addl. CIT being 'satisfied' with the reasons recorded stood fulfilled at the very instance of forwarding of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel of the assessee submitted that in the case decided by Hon ble Bombay High Court also the Addl. CIT forwarded the proposal of the A.O. to the CIT after recording the gist of the communications received from the A.O. and thereby applying his mind on the proposal of the A.O. and even then it was held by the Hon ble High Court that reopening was not proper. Ld. counsel further submitted that though Hon ble Delhi High Court has substituted the word satisfied used in Section 151(2) with the word approval and sanction but in the case of Ghanshyam K. Khabrani (supra) decided by Bombay High Court, there is no such substitution and therefore, the argument advanced by ld. D.R. in this respect are to be ignored while deciding the issue in hand which is squarely covered in favour of the assessee by the decision of Ghanshyam K. Khabrani (supra). 8. After hearing both the parties and perusing the record we find that in this case return of income declaring total income of Rs.73,97,050/- was filed on 30.10.1996. The same was processed u/s 143(1) of the Act on 22.02.1999. Thereafter order u/s 154 dated 30.03.2000 was passed and revised total income of the assessee, after this rectifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be a joint commissioner of income tax or an Additional Commissioner of income tax u/s 117(1). In the present case, the A.O. submitted a proposal on 18.02.2003 to the CIT, Central-1 through Addl. Commissioner of Income Tax, Central, Range-1. This proposal of the A.O. was forwarded by Addl. CIT to the CIT after recording a summary of communication of the A.O. stating The Assessing Officer has proposed to reopen the assessment for assessment year 1996-97 of the above named assessee for the detailed reasons mentioned in the annexure attached with the proposal. Necessary approval for reopening the assessment may kindly be granted. 10. On 19th February, 2003 CIT Central-1, Ahmedabad approved the proposal of the A.O. dated 10.02.2003. Thus there is no dispute about the fact that the requirement of Section 2 of Section 151 has not been fulfilled in this case as the satisfaction of Joint Commissioner of Income Tax was required to the effect that it was a fit case for the issuance of a notice u/s 148. In the present case the Additional Commissioner of Income Tax forwarded the proposal submitted by the Assessing Officer to the Commissioner of Income Tax. Approval, which has been grante ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) mandates that the satisfaction has to be of the Joint Commissioner. That expression has a distinct meaning by virtue of the definition in Section 2(28C). The Commissioner of Income Tax is not a Joint Commissioner within the meaning of Section 2(28C). In the present case, the Additional Commissioner of Income Tax forwarded the proposal submitted by the Assessing Officer to the Commissioner of income Tax. The approval which has been granted is not by the Additional Commissioner of Income Tax but by the Commissioner of income Tax. There is no statutory provision here under which a power to be exercised by an officer can be exercised by a superior officer. When the statute mandates the satisfaction of a particular functionary for the exercise of a power, the satisfaction must be of that authority. Where a statute requires something to be done in a particular manner, it has to be done in that manner. In a similar situation the Delhi High Court in Commissioner of Income Tax Vs. SPL'S Siddhartha Ltd. (ITA No.836 of 2011 decided on 14 September 2011) held that powers which are conferred upon a particular authority have to be exercised by that authority and the satisfaction which the st ..... X X X X Extracts X X X X X X X X Extracts X X X X
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