TMI Blog2017 (5) TMI 416X X X X Extracts X X X X X X X X Extracts X X X X ..... r and such direction is held to be illegal and unwarranted, therefore, order so passed by the AO is directed to be quashed. - ITA No.2212/Del/2015 - - - Dated:- 25-4-2017 - SHRI B.P. JAIN, ACCOUNTANT MEMBER For The Assessee : Dr. Rakesh Gupta, Adv. and Shri Somil Agarwal, Adv. For The Revenue : Ms. Bedobani Chaudhuri, Sr.D.R. ORDER This appeal of the assessee arises from the order of learned CIT(A)-I, Gurgaon, vide order dated 11.02.2015 for the assessment year 2002-03. 2. The assessee has raised as many eight grounds of appeal, i.e., the legal grounds as well as grounds on merit. 1. That having regard to the facts and circumstance of the case, Ld. CIT(A) has erred in law and on facts in confirming the action of ld. Assessing Officer in framing impugned assessment order without assuming jurisdiction as per law and without serving the mandatory notices under sections 142(1), 148 and 143(2) of the Income Tax Act, 1961. 2. That having regard to the facts and circumstance of the case, Ld. CIT(A) has erred in law and on facts in confirming the action of ld. Assessing Officer in framing impugned assessment order without complying the mandatory conditi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, unless the Joint Commissioner is satisfied on the reasons recorded by such Assessing Officer that it is a fit case for the issue of such notice: Provided that, after the expiry of four years from the end of the relevant assessment year, no such notice shall be issued unless the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner is satisfied, on the reasons recorded by the Assessing Officer aforesaid, that it is a fit case for the issue of such notice. (2) In a case other than a case falling under sub-section (1), no notice shall be issued under section 148 by an Assessing Officer, who is below the rank of Joint Commissioner, after the expiry of four years from the end of the relevant assessment year, unless the Joint Commissioner is satisfied, on the reasons recorded by such Assessing Officer, that it is a fit case for the issue of such notice 4.1 From the provisions of Section 151(2), it is evident that if the case is reopened by any Assessing Officer who is below the rank of Joint Commissioner within four years no approval from the higher authority is required. The officer below the rank of the Joint Commissioner are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmed up as being that there is no legal warrant whatever in the Income-tax Act or any other Act for an assessment to be made subject to the approval of a superior officer of the officer who is to make the assessment, and that therefore, once the Income-tax Officer had made his assessment, it at once became final and could not be changed by him even if the approval of the superior officer which was wrongly ordered in this case was withheld. This principle was followed by me in C. W. No. 6 of 1953. Edward Keventer (Successors) Ltd. v. The State of Delhi, decided on the 20th of October, 1953, in which the award o a Land Acquisition Collector which had actually been approved by the Collector of Delhi and filed in the office had been withdrawn at the instance of the Chief Commissioner and an award by which the compensation was very heavily reduced was substituted. I held in that case that the award became the award of the Collector as soon as it was filed in the office and that although the approval of the Collector had in fact been obtained, this was unnecessary and unwarranted. Apart from this there is no dearth of authorities to the effect that where under a statute it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the terms of his assessment order without delay was the order for the obtaining of the prior approval of the Inspecting Assistant Commissioner, which is the main bone of contention in the petition and which I have already held to be illegal. 5. Learned counsel for the assessee also relied upon the decision in the case of CIT vs. SPL s Siddhartha Ltd. (2012) 345 ITR 0223 (Del.). The relevant decision in the said cases is reproduced hereinbelow: 6. It is relevant to point out that sub-Section (1) and sub-Section 2 of Section 151 of the Act are two independent provisions. The definition of Joint Commissioner is contained in Section 2(28C) and the definition of Commissioner given in Section 2(16), which are as under: Joint Commissioner means a person appointed to be a Joint Commissioner of Income Tax or an Additional Commissioner of Income Tax under sub-Section (1) of Section 117. Commissioner means a person appointed to be a Commissioner of Income Tax under sub-Section(1) of Section 117. 7. Section 116 of the Act also defines the Income Tax Authorities as different and distinct Authorities. Such different and distinct authorities have to exercise thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atena of judgments including that of the Supreme Court. 6. In the circumstances and the facts of the present case, the AO has acted at the behest of the superior authority and accordingly assumption of jurisdiction was bad. Accordingly, it will be a case of failure to exercise the discretion all together and such direction is held to be illegal and unwarranted, therefore, order so passed by the AO is directed to be quashed. 7. Secondly, the present matter was restored back to the file of the AO by the ITAT in ITA No.165/Del/2009 vide order dated 10th September, 2009 and the order is on record. The relevant paragraph is reproduced hereinbelow: Firstly, we shall proceed to see as to whether the Assessing Officer has complied the provisions of section 147 to 151 of the Act, as per law or not. In this case, the notice u/s. 148 was issued on 28.93.2007, after recording the reasons, which are mentioned in the assessment order itself. The AO thereafter issued noticed u/s. 142(1) to the assessee on 01. 11.2007, in reply-thereto, the assessee requested the AO to furnish the copy of reasons recorded. Thereafter, the copies of reasons were furnished to the assessee on 07.12.2007 ..... 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