TMI Blog2018 (8) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... r sanction of the CIT by the Assessing Officer reproduced herein above, it is clear that the Additional Commissioner of Income Tax had not granted permission to initiate reopening proceedings against the Respondent-Assessee. The view of the Additional Commissioner of Income Tax was subject to the approval of his superior – the Commissioner of Income Tax. Thus, there was no final sanction granted by the Additional Commissioner of Income Tax for issuing the notice dated 25th March, 2011 to reopen the Assessment. Further, it is the Commissioner of Income Tax who directed the issuance of the notice under Section 148 of the Act to the Assessing Officer. Thus, it is very clear that the final sanction/ approval was that of the Commissioner of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Respondent is engaged in the business of trading in pharmaceutical products. On 25th March, 2011, the Assessing Officer issued a notice under Section 148 of the Act, seeking to reopen the assessment for the Assessment Year 200405. Respondent challenged the issuance of the reopening notice dated 25th March, 2011 on the ground that, permission/ sanction for issuing of the notice had to be obtained from the Additional Commissioner of Income Tax under Section 151 (2) of the Act while the sanction in this case has been obtained from the Commissioner of Income Tax. Thus, in breach of the Section 151 of the Act. Therefore, without jurisdiction. The Assessing Officer did not accept the above submission of the Respondent and proceeded to pass a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Form itself indicates that the Assessing Office had submitted the proposal to obtain approval of the Commissioner of Income Tax before issuing the notice dated 25th March, 2011. The remark by Additional Commissioner of Income Tax on the form, is as under: 12. Remark of the Addl. CIT: Yes. I am satisfied. It is a fit case to reopen the case u/s. 147 of the Act. The notice u/s. 148 may be issued subject to CIT approval. Sd/ (VIRENDRA OJHA) Addl. Commissioner of Income Tax, Central Range 10, Mumbai. It, thereafter, was examined by the Commissioner of Income Tax who expressed his approval in the following form: 13. Remark of the CIT Yes, I am satisfied that in view of facts, as indicated in the Annexu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rded by the Assessing Officer to issue the reopening notice. Thus, the requirement of Section 151 (2) of the Act is satisfied inasmuch as the Additional Commissioner of Income Tax has found it to be a fit case for issuing of notice. It is further submitted that even though, the approval was obtained from the Commissioner of Income Tax for issuance of the notice, it does not take away the fact that the Additional Commissioner of Income Tax was satisfied with reasons recorded by the Assessing Officer. Therefore, it is submitted that the notice dated 25th March, 2011, cannot be said to be without jurisdiction. 9. It is undisputed position before us that in terms of Section 151(2) of the Act, the sanctioning/ permission to issue notice under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statutory provision here under which a power to be exercised by an officer an be exercised by a superior officer. When the statute mandates the satisfaction of a particular manner, it has to be done in that manner. In a similar situation, the Delhi High Court in CIT v/s. SPL's Siddhartha Ltd. (ITA No. 836 of 2011 decided on September 14, 2011) since reported in [2012] 345 ITR 223 (Delhi) held that powers which are conferred upon a particular authority have to be exercised by that authority and the satisfaction which the statute mandates of a distinct authority cannot be substituted by the satisfaction of another. We are in respectful agreement with the judgment of the Delhi High Court. (emphasis supplied) 11. In the afore ..... X X X X Extracts X X X X X X X X Extracts X X X X
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