TMI Blog2017 (11) TMI 961X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions of section 151(1) of the Income Tax Act as exist at the relevant point of time. In the case of the assessee here is no dispute about the fact that the notice under section 148 issued on 20th March 2013 was after the expiry of 4 years from the assessment year under consideration and the original assessment was also frame under section 143(3) of the Act. Therefore, on principle we find merits in the contention of the assessee however, neither this issue was raised before the authorities below nor it was adjudicated. We find that though the assessee raised an objection againstthe notice issued under section 148 of the Act and consequential reassessment completed under section 147 read with section 143(3) of the Act however, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment year 2006-07. The assessee has raised the following grounds as under:- 1. That on facts and in circumstances of case, ld. CIT(Appeals) grossly erred and acted illegality in confirming the issue of notice u/s 148 and finalization of assessment proceeding by the AO. U/s 143(3) of the Act. 2. That on law as well as on the facts and in circumstances of the case, ld. CIT(Appeals) grossly erred and was acted illegally in confirming the addition of a sum of ₹ 48,11,521/- on account of alleged brokerage receipt without any basis and rational justification. 2. Ground number 1 is regarding validity of reopening of assessment under section 148 of the Income Tax Act. The assessee is an individual and working as Develop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s has escaped assessment. 3. Before us ld. AR of the assessee has submitted that the original assessment was completed under section 143(3) and thereafter the AO reopened the assessment after the expiry of 4 years on 20th March 2013. Therefore, the approval was required to be taken from Commissioner of Income Tax or Chief Commissioner of Income Tax before issuing the notice under section 148 of the Act. Ld. AR of the assessee has submitted that in the case of the assessee the approval was granted by J CIT as per the performa of approval at page number 44 45 of the paper book. Thus ld AR of the assessee has contended that reopening of the assessment is invalid as the assessing officer had no jurisdiction to proceed with the reassessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 148 after 4 years from the end of the assessment year without the sanction of chief Commissioner or commissioner as per the proviso to section 151(1) is invalid. Hence, the ld. AR of the assessee has contended that a notice issued under section 148 without obtaining the saction of the chief commissioner or commissioner is not valid and consequently the entire reassessment proceedings are void and not sustainable in law. 4. On the other hand ld. Dr has submitted that this plea has not been raised by the assessee before the authorities below and therefore, this cannot be raised first time at this stage. He has further contended that the assessee raised the objection against the reopening of the assessment on the ground that assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice because the competent authority to approve the reasons recorded by AO is the commissioner or chief commissioner on his satisfaction that the income assessable to tax as proposed by the assessing officer has escaped assessment after going through the relevant record and the reasons recorded by the assessing officer. Without the approval of the competent authority the AO is not empowered to issue the notice under section 148 and therefore, such notice issued under section 148 is invalid and consequential proceedings under section 147 read with section 143 void for want of jurisdiction and not sustainable under law. In the case of the assessee here is no dispute about the fact that the notice under section 148 issued on 20th March 2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ular contention and plea of invalidity of the notice issued under section 148 for want of the approval of the competent Authority under section 151(1) of the Act. Since this issue has been raised by the assessee first time before the Tribunal and goes to the root of the matter but subject to the verification of the fact that the approval was obtained from joint commissioner and not from the chief commissioner or Commissioner as provided under section 151(1) of the Act. Accordingly, in the facts and circumstances of the case and in the interest of Justice we set aside this issue to the record of the CIT(appeals) for consideration and adjudication of this ground of the assessee. 7. Since the legal issue raised by the assessee is set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X
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