TMI Blog2020 (1) TMI 1673X X X X Extracts X X X X X X X X Extracts X X X X ..... - As per sub-Section (1) of Section 151, no notice could have been issued u/s 148 of the Act by an AO, after the expiry of four years from the end of relevant assessment year unless the Pr. Chief Commissioner or Chief Commissioner or Pr. Commissioner or Commissioner is satisfied, on the reasons recorded by such AO, that it is a fit case for issue of such notice When the statute mandates the satisfaction of a particular functionary/authority for the exercise of a power, the satisfaction must be of that authority. So since the satisfaction/approval is not of any of the authorities given in sub-Section (1) of Section 151 of the Act, the notice issued by AO u/s 148 of the Act is without jurisdiction as a consequence the re-assessment framed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1961 (hereinafter the Act ) for Assessment Year (hereinafter AY ) 2009-10. 2. First ground of the assessee is as under: For that the ld. Pr. CIT erred in invoking the provisions of sec. 263 when the original assessment itself passed u/s 147/143(3) was bad in law and ab-initio-void and such order cannot be set aside u/s 263 since the reopening of the assessment u/s 147 itself was bad in law. 3. Brief facts of the case pertaining to the ground no. 1 is as follows. The AO in the assessment order notes that the case was reopened u/s 147 of the Act with prior approval from ld. Addl. CIT, Range-3, Kolkata in accordance with provision of Section 151 of the Act. Thereafter he notes that he issued notice u/s 148 of the Act on 30.03 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lows: 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. 4. We note that admittedly, the approval u/s 151(1) of the Act, in the case on hand has been granted by the Additional Commissioner of Income Tax Range 3 and not by the Commissioner of Income Tax as mandated under the Act. Hence the reopening in question is bad in law as held by the Hon ble Bombay High Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s merit in the contention raised on behalf of the assessee that the requirement of section 151(2) could have only been fulfilled by the satisfaction of the Joint Commissioner that this is a fit case for the issuance of a notice under section 148. Section 151(2) mandates that the satisfaction has to be of the Joint Commissioner. That expression has a distinct meaning by virtue of the definition in section 2(28C). The Commissioner is not a Joint Commissioner within the meaning of section 2(28C). In the instant case, the Additional Commissioner forwarded the proposal submitted by the Assessing Officer to the Commissioner. The approval which has been granted is not by the Additional Commissioner but by the Commissioner. There is no statutory pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 116 also defines the Income-tax authorities as different and distinct Authorities. Such different and distinct authorities have to exercise their powers in accordance with law as per the powers given to them in the specified circumstances. If powers conferred on a particular authority are arrogated by other authority without mandate of law, it will create chaos in the administration of law and hierarchy of administration will mean nothing. Satisfaction of one authority cannot be substituted by the satisfaction of the other authority. It is trite that when a statute requires, a thing to be done in a certain manner, it shall be done in that manner alone and the Court would not expect its being done in some other manner. [Para 7] Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. We note that as per sub-Section (1) of Section 151, no notice could have been issued u/s 148 of the Act by an AO, after the expiry of four years from the end of relevant assessment year unless the Pr. Chief Commissioner or Chief Commissioner or Pr. Commissioner or Commissioner is satisfied, on the reasons recorded by such AO, that it is a fit case for issue of such notice. So when the statute mandates the satisfaction of a particular functionary/authority for the exercise of a power, the satisfaction must be of that authority. So since the satisfaction/approval is not of a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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