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Sh. Mahaveer Prasad Gupta Versus DCIT, Circle-7, Jaipur

2017 (11) TMI 961 - ITAT JAIPUR

Validity of reopening of assessment under section 148 - permission from non competent authority - whether notice issued under section 148 and reasons recorded by the AO for reopening of the assessment are not valid as the necessary approval was not obtained from the chief commissioner or Commissioner but the approval was obtained from Joint commissioner? - Held that:- There is no quarrel on the point that in case of reopening of assessment under section 148 after expiry of 4 years from the relev .....

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ection 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 was based on entirely a different plea and ground that the assessing officer was having no reas .....

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me 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. - Appeal of the assessee is allowe .....

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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 .....

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14th August 2012 in case of M/s. Vedang Colonizers Private Limited. During the survey proceedings a document was impounded containing an account of Balaji Vihar scheme developed by M/s. Luxmi Grih Nirman Sahkari Samiti Limited Jaipur. Based on this document the AO noted that the assessee received a sum of rupees 4811521 as brokerage income on land dealings. Accordingly the AO proposed to reopen the assessment and assess the said brokerage income to tax by issuing a notice under section 148 on 2 .....

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33A to form the opinion that the income assessable to tax on account of brokerage receipt in land dealings 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 .....

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on 151(1) of the Income Tax Act and submitted that in case the assessment is reopened after 4 years from the end of the assessment year then the approval for reopening of the assessment is required to be granted by the chief commissioner or Commissioner as case may be on satisfaction of the regions recorded by the assessing officer that it is a fit case for issue of notice. Since in the case of the assessee reopening is after the expiry of 4 years from the assessment year and approval was grante .....

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Court has held that the notice issued under section 148 after 4 years from the assessment year was not valid as the approval was obtained only from joint Commissioner and the entire proceedings stood vitiated for want of competence. The ld AR has also relied upon a series of decisions on this point wherein it has been held that the notice issued under section 148 after 4 years from the end of the assessment year without the sanction of chief Commissioner or commissioner as per the proviso to sec .....

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the assessee raised the objection against the reopening of the assessment on the ground that assessing officer issued the notice under section 148 and initiated the proceedings of reassessment without any basis and without authority of law. Therefore, the objection of the assessee before the CIT(appeals) was that the reasons recorded by the assessing officer for reopening of the assessment are not sufficient to believe that the income assessable to tax has escaped assessment. He has relied upon .....

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al was not granted by the competent authority then the notice issued under section 148 is invalid. There is no quarrel on the point that in case of reopening of assessment under section 148 of the Income Tax Act after expiry of 4 years from the relevant assessment year the approval of reasons recorded by AO is required to be granted by the Commissioner aor chief Commissioner as case may be as per the provisions of section 151(1) of the Income Tax Act as exist at the relevant point of time. The n .....

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ssue 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 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 Ac .....

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