TMI Blog2016 (5) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... rs issued under Section 120 (1) or Section 120 (2) of the Act will not make a difference to the above legal position. The reason is not far to seek. It is only the AO who has issued the original assessment order dated 13th April 2009 for AY 2007-08 under Section 143 (3) of the Act who is empowered to exercise powers under Section 147/148 to re-open the assessment. This is because he alone would be in a position to form reasons to believe that some income of that particular AY has escaped assessment. This again cannot be based on a mere change of opinion. Further, in terms of Section 151 of the Act such a move will have to have the prior approval of the CIT. Under the scheme of the Act, if a superior officer forms an opinion that the origina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led by the Respondent. 3. The Assessee filed a return of income for AY 2007-08 on 18th September, 2007 declaring an income of ₹ 38,76,580. The Deputy Commissioner of Income Tax ( DCIT ), Circle 39(1), who is the Assessing Officer ( AO ) of the Assessee, issued a notice to the Assessee under Section 142(1) of the Act on 10th October, 2008 raising certain queries and calling for records. These were furnished by the Assessee on 3rd November, 2008. On 13th April 2009, an assessment order was passed by the AO under Section 143(3) of the Act. 4. In terms of the provisions to Section 147 of the Act, the limitation for reopening the assessment expired on 31st March, 2012. The extended period of limitation in terms of Section 149(1)(b) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n over a case which was completed by the AO who was the DCIT, Circle 39(1). A copy of the return filed for AY 2007-08 was enclosed. Accordingly, the ITO Ward 39 (2) was requested to drop the proceedings under Section 148 of the Act. 7. This was followed by another notice dated 23rd June 2014, again under Section 148 of the Act, issued this time by the ACIT, Circle 39(1), the AO of the Assessee stating that she had reasons to believe that the Assessee's income of ₹ 53,97,053/- for AY 2007-08 had escaped assessment. The said notice dated 23rd June, 2014 was beyond the deadline of 31st March, 2014 in terms of Section 149(1)(b) of the Act. 8. The Assessee, in response to the above notice, addressed a letter dated 27th June, 2014 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the notice under Section 148 dated 14th March, 2014 nor filed any return in response. It was further stated: In addition to the information provided in the mentioned letter it is further clarified that the notice under Section 148 dated 14th March, 2014 was issued after obtaining prior approval of the JCIT, Range-39 who had the authority over the jurisdiction of the case. 12. One of the main points urged in the present petition is that the reopening of the assessment sought to be made under Section 148 of the Act is bad in law since the notice dated 14th March, 2014 for AY 2007-08 had been issued and the reasons for re-opening had been recorded by the ITO Ward 39(2), who was not the AO as far as the Petitioner was concerned for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecording the reasons for reopening. A copy of the said reasons was also sent to the Assessee along with the notice. 8. Subsequently the file was transferred to Assistant Commissioner of Income Tax Circle 39(1) New Delhi as the income was more than ₹ 20 lakhs, and the Assistant Commissioner of Income Tax Ward 39(1) had again issued the notice dated 23.6.2014 under section 148. 14. It is further averred in the counter affidavit that the grounds urged by the Assessee are frivolous untenable and unsustainable . 15. What is evident from the counter affidavit filed by the Respondent is a clear admission that the officer who issued the notice dated 14th March, 2014, and recorded the reasons for re-opening the assessment, i. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheme of the Act, if a superior officer forms an opinion that the original assessment order is prejudicial to the interests of the Revenue, recourse can be had to Section 263 of the Act. In any event the question of an ITO who is not the AO who passed the original assessment order under Section 143 (3) of the Act for particular AY, exercising the powers under Sections 147/148 of the Act to re-open that assessment does not arise. 17. Consequently, this Court quashes the notices dated 14th March 2014 and 23rd June 2014 as well as the order dated 28th January, 2015 passed by the DCIT rejecting the objections of the Petitioner. The writ petition is allowed and the application is disposed of in the above terms but, with no order as to costs. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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