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TMI Blog2018 (1) TMI 317X X X X Extracts X X X X X X X X Extracts X X X X ..... 47 of the Act even when conditions required to be fulfilled u/s 151 was not been complied by assessing officer. 3. The appellant says and submits that the AO forwarded the proposal for reopening of the assessment to CIT Gandhinagar for his approval through JCIT. The JCIT expressed satisfaction about the recording of reasons and forwarded to CIT. The CIT approved the proposal on 30-03-2011 and received by the AO on 04-04-2011. The Notice under Section 148 was issued on 30-03-2011. Since the notice issued is prior to the approval of the CIT, it is bad in law. Under Section 151(2) the AO is required to take approval of JCIT but he has not taken JCIT approval and has taken approval of CIT. None obtaining of permission of the authority as prescribed in the Act is bad in law [Ghanshyam K. Khabrani V/s. ACIT 346 ITR 443 [Mum] and CIT V/s. SPL's Siddhartha Ltd. 345 ITR 223 (Del)]. 2. When this appeal was called out for hearing, learned counsel for the assessee mentioned it as a covered matter - covered by a series of orders of the coordinate benches in the cases of Arvindbhai R. Patel vs. ITO (ITA No.228/Ahd/2015; order dated 24.07.2017), Bharat Ramjibhai Patel vs. ITO (ITA No.229 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able legal position. 4. We had an occasion to take a look at the internal processing sheet used by the income tax authorities for granting approval for reopening the assessment at the request of the Assessing Officer, and we understand that this internal processing sheet is a part of the standard operating procedure in the income tax department generally, and at least in the charge of the Commissioner concerned. This internal processing sheet has 13 columns and, so as to demonstrate the actual working of the processing of granting such an approval, we are reproducing below scanned copy of the processing sheet in this case: FORM FOR RECORDING THE REASONS FOR INITIATING PROCEEDINGS UNDER SECTION 148 FOR OBTAINING THE APPROVAL OF THE COMMISSIONER OF INCOME-TAX, GANDHINAGAR, AHMEDABAD 1. Name and address of the assessee Shri Mayurbhai MangaSdas Patel 8, Prakash Society, Radhanpur Road, Mehsana 2. Permanent Account Number ADPPP9786K 3. Status Individual 4. District/Circle/Range ITO Ward-2, Mehsana 5. Assessment year in respect of which has escaped assessment 2005-2006 6. The quantum of income which has escaped assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght of this factual position, revert to the provisions of section 151, which reads as follows: "151 - Sanction for issue of notice (1) No notice shall be issued under section 148 by an Assessing Officer, after the expiry of a period of four years from the end of the relevant assessment year, unless the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner is satisfied, on the reasons recorded by the Assessing Officer, 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, 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. (3) For the purposes of sub-section (1) and sub-section (2), the Principal Chief Commissioner or the Chief Commissioner or the Principal Commissioner or the Commissioner or the Joint Commissioner, as the case may be, being satisfied on the reasons recorded by the Assessing Officer about fitness of a case for the issue of notice under section 148, nee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his satisfaction to the effect that on the reasons recorded by the Assessing Officer, it is a fit case for reopening the assessment. Even if there is any defect in the proceedings, as long as it is in substance and effect of the same is in conformity with the scheme of the Act, section 292B prevents it's being rendered invalid on that count. Section 292B, inter alia, categorically provides that "no ..... proceeding .........taken in pursuance of any of the provisions of this Act shall be invalid or shall be deemed to be invalid merely by reason of any mistake, defect or omission in such ........... proceeding if such ........ proceeding is in substance and effect in conformity with or according to the intent and purpose of this Act". Quite clearly, therefore, it is indeed an inherent part o the approval being granted by the Commissioner that the Joint/Additional Commissioner of Income-tax expresses his satisfaction about the reason of reopening of assessment being sufficient to issue notice under section 148 and thus initiate the reassessment process, and, in the case before us, this aspect of the matter has come to the light. Ironically, however, this aspect of the matter is not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operating procedure or to demonstrate to us that this standard operating procedure was followed, and there cannot, thus, be a case in which approval of the Commissioner was obtained without the satisfaction of the Range Head (i.e. concerned Joint/ Additional Commissioner of Income Tax) qua the reasons recorded by the Assessing Officer for reopening the assessment, Commissioner could have granted the approval for reopening. It is for the income tax authorities to present to the judicial forums the actual facts, with supporting evidences, to the judicial forums and thus properly assist these forums in dispensing justice to the parties. It is extremely painful to us to depart from the views that the coordinate benches have taken in the earlier cases, or to distinguish the judgments of Hon'ble Courts above, but then, as complete facts having come to light, and duly evidenced, before us, we cannot knowingly perpetuate the errors in the name of reverence to binding judicial precedents. In the case of Mumbai Kamgar Sabha vs. Abdulbahi Faizullbhai AIR 1976 SC 1455 Their Lordships have, in their inimitable and felicitous words observed thus, "It is trite, going by anglophonic principles tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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