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TMI Blog2017 (2) TMI 997X X X X Extracts X X X X X X X X Extracts X X X X ..... s of appeal, facts for both the year are similar, thus, both the appeal were clubbed together, heard and are decided by a consolidated order to avoid the conflicting decision. For appreciation of facts first we are referring the facts of appeal for AY 2004-05. The assessee has raised the following grounds of appeal: 1. That the reopening proceedings u/s 147 read with section 148 of the Incometax Act, 1961 having been wrongly initiated, the action of the Ld CIT(A) in upholding the reassessment proceedings was totally wrong, arbitrary, unjustified, unwarranted and illegal. 2. That on the facts and circumstances of the case, the Ld AO was totally wrong, arbitrary and illegal and consequently the order u/s 143(3) read with Section 147 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee has escaped assessment. Therefore, the AO issued notice u/s 148 on 23.03.2011. In response to the notice u/s 148, the assessee filed return of income on 18.04.2011. The assessee objected for re-opening of the assessment vide Objection dated 01.07.2011 and 29.07.2011. The objection of assessee was rejected vide order dated 04.08.2011. Thereafter, the AO proceeded for assessment and disallowed the expenses of Rs. 24,08,211/- in the assessment order passed u/s 143(3)/147 of the Act. Aggrieved by the order of AO the assessee unsuccessfully filed appeal before the ld. CIT(A). Thus, further aggrieved by the order of ld. CIT(A), the present appeal is filed before us. 3. We have heard the ld. Authorized Representative (AR) of asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision of Delhi High Court in CIT vs. SPL'S Siddhartha Ltd. (2012) 17 taxmann.com138 (Del.) and in Shri Ghanshyam K. Khabrani vs. ACIT (2012) 20 taxmann.com 716 (Bom). On the other hand, ld. DR for the Revenue argued that the four years condition as prescribed under the proviso of section 147 is in respect of assessment order passed u/s 143(3) only and not for the return of income processed u/s 143(1). 4. We have considered the rival contention of the parties and gone through the orders of authorities below. The AO while making the assessment for AY 2008-09 recorded the following reasons for re-opening of assessment for AY 2004-05. "1. In this case, return of income was filed on 31.10.2004, declaring loss at Rs. 24,08,211/-. No assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urisdictional High Court after discussing the provision of section 151 of the Act held as under: 6. The second ground upon which the reopening is sought to be challenged is that the mandatory requirement of Section 151 (2) has not been fulfilled. Section 151 requires a sanction to be taken for the issuance of a notice under Section 148 in certain cases. In the present case, an assessment had not been made under Section 143(3) or Section 147 for A.Y. 2004-05. Hence, under sub section 2 of Section 151, no notice can be issued under Section 148 by an Assessing Officer who is below the rank of Joint Commissioner after expiry of 4 years from the end of the relevant Assessment Year unless the Joint Commissioner is satisfied, on the reasons recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner 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 particular functionary for the exercise of a power, the satisfaction must be of that authority. Where a statute requires something to 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 14th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conclude that there was no new material before the AO for re-opening of the concluded assessment. The re-opening was made beyond the four year from the end of relevant assessment year. Moreover, there was no proper sanction from the competent authority for issue of notice as provided u/s 151 of the Act. Thus, in view of the above discussion, the re-opening of assessment u/s 147 is bad-in-law. We hold accordingly. 8. In the result, Ground Nos. 1 & 2 raised in the present appeal are allowed. 9. Since we have allowed the Ground Nos. 1 & 2 and re-assessment order passed u/s 143(3) r.ws. 147 is held as invalid. Thus, the discussion on other grounds of appeal became academic. In the result, appeal of the assessee for AY 2004-05 is allowed. 10. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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