TMI Blog2006 (4) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... section 148 on ground that the said notice is absolutely illegal, arbitrary and had been issued only on account of change of opinion - held that in view of the definition of the words 'Joint Commissioner' in section 2(28C) of the Act, an Additional Commissioner is to be treated as a Joint Commissioner." - we are of the considered opinion that the present applications seeking review of our judgment and order dated December 3, 2004, are not maintainable - Civil Misc. Writ Petition No. 540 of 2001, Civil Misc. Application No. 107827 of 2005, Civil Misc. Review Application No. 107829 of 2005, Civil Misc. Review Application No. 107829 of 2005 - - - Dated:- 13-4-2006 - Judge(s) : R. K. AGRAWAL., PRAKASH KRISHNA. JUDGMENT The judgment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion before the hon'ble apex court on April 11, 2005. The applicants sought permission to withdraw the special leave petition, which was granted. The apex court has passed the following order: "Learned senior counsel appearing for the petitioner, inter alia, submits that under section 151 of the Income-tax Act the assessment if to be reopened then the same can be done only after the permission is obtained from the Chief Commissioner which has not been done in these cases. He also submits that the reopening can only be done by an officer not below the rank of Joint Commissioner. From the impugned judgment we do not find that this issue has been raised before the Tribunal. However, learned senior counsel points out from the grounds of the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reassessment. Thus, the entire proceeding for reassessment was without jurisdiction; and (iii) The aforesaid points were raised before this court at the time of hearing of the writ petition by senior counsel, Sri V.B. Upadhaya and the fact is also highlighted in paragraphs 3(a) and (b) of the rejoinder affidavit which issues of jurisdiction were unadjudicated by this court. In the counter affidavit filed by Sri Subhash Chandra Saxena, Income-tax Inspector, Ward I, Income-tax Officer, Bijnor, it has been stated that the petitioner's counsel did not raise the plea of jurisdiction before this court and it is not open to him to raise this plea from the back door in a review application. In reply to the counter affidavit filed in the revie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eem it fit and proper and in the interest of justice to condone the delay in filing the review applications as the grounds given in the application seeking condonation do make out sufficient cause. We accordingly condone the delay in filing the review applications. Coming to the merits of the review applications including their maintainability, we find that Sri Upadhaya is correct that the plea that the Joint Commissioner had not granted sanction to the issuance of the notice under section 148 was raised by him during the course of the arguments. However, we find from our notes that the court had specifically pointed out to learned counsel for the applicant that there was no averment in the writ petition regarding sanction having been g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment proceedings initiated by the respondent against the petitioner are wholly without jurisdiction illegal and liable to be quashed. (b) That the action of the respondent under section 148 of the Act is also without jurisdiction on the ground that since four years from the relevant assessment years have already been expired as such initiation of proceedings under section 148 of the Income-tax Act can be resorted to only after obtaining the satisfaction of the Chief Commissioner or Commissioner of Income-tax whereas in the present case, upon a perusal of the reasons recorded, it is apparent that the Income-tax Officer concerned has sent the proposal to the Additional Commissioner of Income-tax for his sanction under section 151 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record the aforementioned development. Even otherwise, we find that this court in the case of Dharam Pal Singh Rao v. ITO [2004] 271 ITR 223, has held that the Additional Commissioner would be a Joint Commissioner within the meaning of the words "Joint Commissioner" under sub-section (2) of section 151 of the Act in view of the definition of the words "Joint Commissioner" given in section 2(28C) of the Act. The aforesaid decision has been followed by this court in the case of Farrukhabad Gramin Bank v. Addl. CIT [2005] 277 ITR 320, wherein this court has held as follows: "Section 2(28C) of the Act defines the words 'Joint commissioner' as follows: '(28C) "Joint Commissioner" means a person appointed to be a Joint Commissioner of Incom ..... X X X X Extracts X X X X X X X X Extracts X X X X
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