TMI Blog1992 (2) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner of Incometax on August 13, 1991, are as under : " In the original return filed on December 12, 1984, the assessee claimed depreciation amounting to Rs. 11,25,934. In the revised return, there was no change so far as this claim is concerned. In the claim made in the return, the assessee claimed extra depreciation over and above the normal depreciation in the case of old as well as new plant and machinery. Apparently, this claim was made as per the terms of item III(iii) of Appendix I to the Income-tax Rules, 1962. Such extra depreciation was allowable in the case of a company using its premises as a hotel where such plant and machinery were installed provided that such hotels were approved by the Central Government for the purpose o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted August 13, 1991, D. C. I. T. Spl. Range-13, Calcutta." There is no dispute that the sanction of the Chief Commissioner or Commissioner of Income-tax was not obtained before issuance of this notice. Two questions have been raised by Dr. Pal, appearing on behalf of the petitioner. The first is as to whether this notice is void inasmuch as the sanction of the Chief Commissioner or Commissioner of Income-tax was not obtained before issuance of the notice. The second point is as to whether there was any reason for issuance of the notice at all in view of the fact that the recorded reasons have not alleged any omission or failure on the part of the assessee to disclose any material fact which led to underassessment. So far as the first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... category of cases, the notices may be issued by an Assessing Officer below the rank of the Assistant Commissioner of Income-tax with prior approval of the Deputy Commissioner, if he is satisfied that this is a fit case for issue of such a notice. The "Assessing Officer" has been defined by section 2(7A) of the Income-tax Act to mean : "(7A) 'Assessing Officer' means the Assistant Commissioner or the Income-tax Officer who is vested with the relevant jurisdiction by virtue of directions or orders issued under sub-section (1) or sub-section(2) of section 120 or any other provision of this Act, and the Deputy Commissioner who is directed under clause (b) of sub-section (4) of that section to exercise or perform all or any of the powers and f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 90, to a certain extent. Before April 1, 1990, it was not necessary to obtain the sanction of any higher authority for the Income-tax Officer or the Assessing Officer to issue a notice for reopening of an assessment made within a period of four years. Sanction was needed only for the purpose of issuance of a notice under section 148, if it was issued beyond the period of four years from the end of the relevant assessment year. But, in the second category of cases, where the notice is being issued after the expiry of four years from the end of the relevant assessment year, the law is that no such notice shall be issued unless the Chief Commissioner or the Commissioner is satisfied on the reasons recorded by the Assessing Officer that it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er" has not been used in a limited sense of an officer below the rank of the Assistant Commissioner in section 151. The law is quite clear. If the notice is to be issued after the expiry of four years, then the Chief Commissioner or the Commissioner of Incometax must be satisfied with the reasons recorded by the Assessing Officer that it is a fit case for reopening. Therefore, the satisfaction of the Chief Commissioner or the Commissioner is a sine qua non before issuance of a notice under section 148 by the Assessing Officer. The Assessing Officer may be of the rank of an Income-tax Officer or the Assistant Commissioner or the Deputy Commissioner, but when such notice is to be issued after the expiry of four years after the end of the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on the basis of which the respondent proposed to reopen the assessment. If the assessee wrongly understood the implication of the Central Government Notification dated May 28, 1971, or its discontinuance, then, at the highest, it may be said that the assessee has wrongly understood the import of the notification. But, the notification is part of the law of the land. It should have been known to the assessee as well as to the Department. If the assessee has wrongly understood the law, then it cannot be said that there was "suppression of material fact necessary for his assessment". What should be the legal implication of the notification should have been known to the Department. At the highest, it may be said that the assessee has erred in ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
