ITO 25(3)(3), MUMBAI v. RUPKUMAR BALCHAND ROHRA, MUMBAI

ITA 4999/MUM/2010 | 2002-2003
Pronouncement Date: 10-10-2013 | Result: Dismissed

Appeal Details

RSA Number 499919914 RSA 2010
Assessee PAN AFBPR5573H
Bench Mumbai
Appeal Number ITA 4999/MUM/2010
Duration Of Justice 3 year(s) 3 month(s) 24 day(s)
Appellant ITO 25(3)(3), MUMBAI
Respondent RUPKUMAR BALCHAND ROHRA, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 10-10-2013
Appeal Filed By Department
Order Result Dismissed
Bench Allotted D
Tribunal Order Date 10-10-2013
Date Of Final Hearing 11-03-2013
Next Hearing Date 11-03-2013
Assessment Year 2002-2003
Appeal Filed On 16-06-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH MUMBAI . . . ! ' # BEFORE SHRI I.P. BANSAL JM AND RAJENDRA AM ./ I.T.A. NO.4999/MUM/2010 ( $ $ $ $ % % % % / ASSESSMENT YEAR : 2002-03 THE ITO 25(3)(3) C-11 R.NO.304 PRATYAKSH KAR BHAVAN BANDRA KURLA COMPLEX BANDRA(E) MUMBAI 400051 $ $ $ $ / VS. SHRI RUPKUMAR BALCHAND ROHRA 402 MILLINIUM PARADISE NEPTUNE EMP-28 THAKUR VILLAGE KANDIVALI (E) MUMBAI 400 101. & ' ./ ' ./ PAN/GIR NO. : AFBPR 5573H ( &( / APPELLANT ) .. ( )*&( / RESPONDENT ) &( + / APPELLANT BY: SHRI SANJEEV JAIN )*&( + / RESPONDENT BY : SHRI FARROKH IRANI $ -' / DATE OF HEARING : 10/10/2013 ./% -' / DATE OF PRONOUNCEMENT : 10/10/2013 0 / O R D E R PER I.P.BANSAL J.M: THIS IS AN APPEAL FILED BY THE REVENUE. IT IS D IRECTED AGAINST THE ORDER PASSED BY LD. CIT(A)-35 MUMBAI DATED 30/03/2010 FOR THE ASSESSMENT YEAR 2002-03. GROUNDS OF APPEAL READ AS UNDER: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF `.26 99 739/- MADE BY THE AO ON ACCOUNT OF LTCG WITHOUT REMANDING THE ISSUE BACK TO THE FILE OF THE AO FOR THE PURPOSE OF FINDING OUT THE WHEREABOUTS OF THE ORIGINAL MOU AND FOR TAKING OPIN ION OF THE SIGNATURE EXPERT. 2. THE APPELLANT PRAYS THAT THE ORDER OF THE LD. C IT(A) ON THE ABOVE GROUND BE SET-ASIDE AND THAT OF THE AO BE RESTORED. ./ I.T.A. NO.4999/MUM/2010 ( $ $ $ $ % % % % / ASSESSMENT YEAR : 2002-03 2 2. BEFORE THE APPEAL WAS ARGUED BY LD. DR IT WAS SUBMITTED BY LD. AR THAT BEFORE LD. CIT(A) THE ASSESSEE HAD CHALLENGED THE V ALIDITY OF REASSESSMENT PROCEEDINGS AS WELL AS MERITS OF THE ADDITION. HE SUBMITTED THAT THE ISSUE REGARDING VALIDITY OF REASSESSMENT HAS BEEN DECI DED BY LD. CIT(A) AGAINST THE ASSESSEE AND ON MERITS HE HAS GRANTED RELIEF TO THE ASSESSEE. THE ASSESSEE DID NOT PREFER EITHER CROSS APPEAL OR CROSS OBJECTION. HOWEVER TAKING RESORT TO RULE 27 THE ASSESSEE WANT TO SUPPORT THE ORDER OF LD. CI T(A) GRANTING RELIEF TO THE ASSESSEE TO CONTEND THAT LD. CIT(A) HAS WRONGLY UPH ELD THE VALIDITY OF REASSESSMENT PROCEEDINGS. HE SUBMITTED THAT SUCH C OURSE OF ACTION CAN BE ADOPTED BY THE ASSESSEE AND SUCH POSITION OF LAW I S WELL SETTLED AND ACCEPTED BY THE MUMBAI TRIBUNAL VIDE ITS ORDER DATED 29/12/200 5 IN ITA NO.3257/MUM/2002 IN THE CASE OF ITO VS. M.L. INDU STRIES. HE HAS SUBMITTED A COPY OF THE SAID DECISION BEFORE US AND A COPY WA S ALSO GIVEN TO LD. DR. 3. READING FROM THE AFOREMENTIONED ORDER OF THE TR IBUNAL IN THE CASE OF ITO VS. M.L. INDUSTRIES(SUPRA) IT WAS SUBMITTED BY LD. AR THAT IN THAT CASE ALSO THE ISSUE ON MERITS REGARDING ADDITION OF RS. 9 43 618/ - WAS DECIDED BY LD. CIT(A) IN FAVOUR OF ASSESSEE AND ISSUE REGARDING VALIDITY OF REASSESSMENT PROCEEDINGS WAS DECIDED AGAINST THE ASSESSEE AND IT WAS THE CONTENT ION OF THE ASSESSEE BEFORE THE TRIBUNAL THAT TAKING RESORT TO RULE 27 ASSESSEE MAY BE PERMITTED TO SAY THAT LD. CIT(A) WAS WRONG IN UPHOLDING THE VALIDITY OF REASS ESSMENT PROCEEDINGS. HE IN THIS REGARD REFERRED TO THE OBSERVATIONS OF THE TRI BUNAL IN PARA 4 TO 7 WHICH FOR THE SAKE OF CONVENIENCE ARE BEING REPRODUCED BELOW: 4. IN THE APPEAL BEFORE THE CIT(A) THE ASSESSEE H AD TAKEN O SETS OF GROUNDS; ONE SET OF GROUNDS AGAINST THE REOPENING OF THE ASSESSM ENT U/S 147 AND THE OTHER SET OF GROUNDS AGAINST THE MERIT OF THE ADDITIONS MADE BY THE ASSESSING AUTHORITY. WHILE DISPOSING OF THE FIRST APPEAL THE C1T(A) UPHELD TH E LEGALITY OF THE REOPENING OF THE ASSESSMENT U/S 147 AND AT THE SAME TIME GRANTED R ELIEF TO THE ASSESSEE ON MERIT. THE ASSESSEE HAS NEITHER FILED AN APPEAL AGAINST TH E ORDER OF THE CIT(A) NOR FILED ANY CROSS OBJECTION IN THE LIGHT OF THE APPEAL FLIE D BY THE REVENUE. REVENUE IS AGGRIEVED BY THE QUANTUM RELIEF GRANTED BY THE QT(A ) AND THAT IS WHY THEY HAVE COME IN APPEAL BEFORE US. 5. IN THIS SCENARIO SHRI K GOPAL THE LEARNED COUN SEL APPEARING FOR THE ASSESSEE CONTENDED THAT HE IS SEEKING THE RIGHT AVAILABLE TO THE ASSESSEE UNDER RULE 27 OF THE INCOME-TAX (APPELLATE TRIBUNAL) RULES 1963 AN D THEREFORE REVIVES ASSESSEES OBJECTION TO THE REOPENING OF THE ASSESSMENT MADE B Y THE ASSESSING AUTHORITY U/S ./ I.T.A. NO.4999/MUM/2010 ( $ $ $ $ % % % % / ASSESSMENT YEAR : 2002-03 3 147. THE LEARNED COUNSEL SUBMITTED THAT EVEN THOUGH THE ASSESSEE WAS SUCCESSFUL IN FIRST APPEAL ON MERITS OF THE CASE THE ASSESSEE S AROUND RELATING TO THE REOPENING OF ASSESSMENT WAS DISMISSED BY THE CIT(A) AGAINST WHICH POINT THE ASSESSEE HAS NOT FILED ANY APPEAL OR CROSS OBJECTION. BUT THE LE ARNED COUNSEL SUBMITTED THAT BY VIRTUE OF RULE 27 THE ASSESSEE IS STILL BESTOWED W ITH THE RIGHT TO SUPPORT THE ORDER OF THE CIT(A) ON THE BASIS OF THE GROUND OF REOPENING WHICH HAS BEEN OTHERWISE DECIDED AGAINST THE ASSESSEE. 6. WE CONSIDERED THIS ARGUMENT VERY SERIOUSLY. THE RELEVANT RULE 7.7 OF INCOME-TAX (APPELLATE TRIBUNAL) RULES 1963 READS AS UNDER: RESPONDENT MAY SUPPORT ORDER ON GROUNDS DECIDED AG AINST HIM (UNDERLINE PROVIDED BY US) 27. THE RESPONDENT THOUGH HE MAY NOT HAVE APPEALED MAY SUPPORT THE ORDER APPEALED AGAINST ON ANY OF THE GROUNDS DE CIDED AGAINST HIM. 7. WE DO AGREE WITH THE LEARNED COUNSEL APPEARING F OR THE ASSESSEE THAT THE ASSESSEE IS PERMITTED TO REVIVE THE GROUND OF REOPE NING OF THE ASSESSMENT WHICH WAS DISMISSED BY THE CIT(A) IN THE COURSE OF DEFEN DING ITS CASE AND DEFENDING THE ORDER OF THE CIT(A). THEREFORE WE HAVE TO EXAMINE WHETHER THE ASSESSING OFFICER WAS JUSTIFIED IN LAW IN REOPENING THE ASSESSMENT U/ S 147. 4. WE HAVE HEARD BOTH THE PARTIES. LD. DR AFTER GO ING THROUGH THE AFOREMENTIONED DECISION AND RULE 27 DID NOT OBJECT TO SUCH REQUEST OF LD. AR THAT THE ISSUE REGARDING VALIDITY OR OTHERWISE OF R EASSESSMENT PROCEEDINGS CAN BE TAKEN BY THE ASSESSEE DURING THE COURSE OF THIS HEA RING. THEREFORE WE ADMIT SUCH CLAIM OF THE ASSESSEE AND PROCEED FIRST TO D ECIDE THIS ISSUE AS THE SAME TOUCHES TO THE JURISDICTION OF AO TO ASSESS THE ASS ESSEE BY WAY OF RE-ASSESSMENT. IF IT IS HELD THAT REASSESSMENT PROCEEDINGS WERE NO T VALIDLY CARRIED OUT THEN WE MAY NOT BE REQUIRED TO GO INTO THE MERITS OF THE C ASE. 5. ARGUING THE CONTENTION OF THE ASSESSEE REGARDING INVALIDITY OF REASSESSMENT PROCEEDINGS LD. AR SUBMITTED THAT RE-ASSESSMENT PRO CEEDINGS ARE INVALID ON THE GROUND THAT THESE PROCEEDINGS HAVE BEEN INITIATED O N OBTAINING APPROVAL FROM COMMISSIONER OF INCOME TAX ON 31/3/2009. ACCORDING TO LD. AR AS PER PROVISIONS OF SECTION 151 OF THE INCOME TAX ACT 19 61 (THE ACT) IF THE ASSESSMENT WHICH IS NOT EARLIER FRAMED UNDER SECTION 143(3) A FTER EXPIRY OF FOUR YEARS AN APPROVAL WILL BE REQUIRED FROM JOINT COMMISSIONER O F INCOME TAX. HE IN THIS REGARD REFERRED TO THE PROVISIONS OF SECTION 151 OF THE ACT WHICH READ AS UNDER: ./ I.T.A. NO.4999/MUM/2010 ( $ $ $ $ % % % % / ASSESSMENT YEAR : 2002-03 4 [ SANCTION FOR ISSUE OF NOTICE. 151. (1) IN A CASE WHERE AN ASSESSMENT UNDER SUB-SECTI ON (3) OF SECTION 143 OR SECTION 147 HAS BEEN MADE FOR THE RELEVANT ASSESSMENT YEAR NO NOTICE SHALL BE ISSUED UNDER SECTION 148 [BY AN ASSESSING OFFICER WHO IS BELOW THE RANK OF ASSISTANT COMMISSIONER [OR DEPUTY COMMISSIONER] UNLESS THE [JOINT] COMMISSIONER IS SATISFIED ON THE REASONS RECORDED B Y SUCH ASSESSING OFFICER THAT IT IS A FIT CASE FOR THE ISSUE OF SUCH NOTICE] : PROVIDED THAT AFTER THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR NO SUCH NOTICE SHALL BE ISSUED UNL ESS THE CHIEF COMMISSIONER OR COMMISSIONER IS SATISFIED ON THE REASONS RECORDED BY THE ASSESSING OFFICER AFORESAID THAT IT IS A FIT CASE FOR THE ISSUE OF S UCH NOTICE. (2) IN A CASE OTHER THAN A CASE FALLING UNDER SUB-S ECTION (1) NO NOTICE SHALL BE ISSUED UNDER SECTION 148 BY AN ASSESSING OFFICER WHO IS BELOW THE RANK OF [JOINT] COMMISSIONER AFTER THE EXPIRY OF FOUR YEARS FROM T HE END OF THE RELEVANT ASSESSMENT YEAR UNLESS THE [JOINT] COMMISSIONER IS SATISFIED ON THE REASONS RECORDED BY SUCH ASSESSING OFFICER THAT IT IS A FI T CASE FOR THE ISSUE OF SUCH NOTICE.] EXPLANATION.FOR THE REMOVAL OF DOUBTS IT IS HEREB Y DECLARED THAT THE JOINT COMMISSIONER THE COMMISSIONER OR THE CHIEF COMMISS IONER AS THE CASE MAY BE BEING SATISFIED ON THE REASONS RECORDED BY THE ASSE SSING OFFICER ABOUT FITNESS OF A CASE FOR THE ISSUE OF NOTICE UNDER SECTION 148 NEED NOT ISSUE SUCH NOTICE HIMSELF.] REFERRING TO THE AFOREMENTIONED PROVISION IT WAS SU BMITTED BY HIM THAT WHERE THE ASSESSMENT EARLIER FRAME IS OTHERWISE THAN SEC TION 143(3) OR 147 THEN NOTICE OF REASSESSMENT IF ISSUED BY AN OFFICER BEL OW THE RANK OF JOINT COMMISSIONER OF INCOME TAX AFTER THE EXPIRY OF FOU R YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR THEN THE NOTICE UNDER SECT ION 148 HAS TO BE ISSUED ONLY IN THE CIRCUMSTANCES WHEN JOINT COMMISSIONER O F INCOME TAX IS SATISFIED ON THE REASONS RECORDED BY THE AO THAT IT IS A FIT CASE FOR ISSUE OF SUCH NOTICES. 6. ADVERTING TO THE FACTS OF THE PRESENT CASE IT WA S SUBMITTED BY LD. AR THAT ASSESSMENT IN THE PRESENT CASE ORIGINALLY WAS NEVE R MADE UNDER SECTION 143(3) OR UNDER SECTION 147. THE IMPUGNED ASSESSMENT YEAR IS A.Y 2002-03. FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR WILL EXPIRE ON 31/3/2007. HE HAS ALSO SUBMITTED BEFORE US COPY OF THE LETTER DATED 30/3/2009 ISSUED BY COMMISSIONER OF INCOME TAX-25 MUMBAI GRANTING APPR OVAL TO THE ADDITIONAL COMMISSIONER OF INCOME TAX RANGE 25(3) FOR THE ISSUE OF NOTICE UNDER SECTION 148 THE CONTENTS OF SUCH LETTER ARE AS UNDER: ./ I.T.A. NO.4999/MUM/2010 ( $ $ $ $ % % % % / ASSESSMENT YEAR : 2002-03 5 OFFICE OF THE COMMISSIONER OF LNCORNE-TAX-25 C-II 2 FLOOR PRATYAKSHA KAR BHAWAN BANDRA KURLA COMPLEX BANDRA (EAST) MUMBAI 400 051. NO.CIT-25/APPROVAT U/S. 151/ 2008-09 DATE: 31/03/2009 THE ADDL. COMMISSIONER OF INCOME-TAX RANGE 25(3) MUMBAI. SUB : REOPENING OF ASSESSMENT U/S 147 OF THE I. T. ACT. 1961 IN THE CASE OF SHRI RUPKUMAR BATCHAND ROHRA FOR THE A.Y. 2 002-03 PAN : AFPPR5573H - REG. PLEASE REFER TO THE ABOVE. THE APPROVAL U/S. 151(1) OF THE INCOME TAX ACT 19 61 FOR ISSUE OF NOTICE U/S 148 OF THE I. T. ACT 1961 IS HEREBY GRANTED IN THE CASE OF SHRI RUPKUMAR BALCHAND ROHRA FOR THE A.Y. 2002-03 FOR THE REASONS REPORTED BY THE .T.O. 25(3) (3 MUMBAI IN HIS PROPOSAL DATED 31/03/2009. SD/- (DILIP KUMAR) COMMISSIONER OF INCOME TAX 25 MUMBAI. 7. ON AFOREMENTIONED FACTS IT WAS SUBMITTED BY LD. AR THAT ASSESSMENT PROCEEDINGS HAVE TO BE HELD TO BE INVALID IN VIEW OF THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF GHANSHYAM K. KABR ANI VS. ACIT 346 ITR 443 (BOM). IN THE SAID CASE BY WAY OF PROCEEDINGS UNDER ARTICLE 226 OF THE CONSTITUTION THE ASSESSEE HAD CHALLENGED LEGALITY OF THE NOTICE INTER-ALIA ON THE GROUND THAT APPROVAL UNDER SECTION 151 WAS OBTAINED FROM COMMISSIONER INSTEAD OF ADDITIONAL COMMISSIONER OF INCOME TAX. AS AGAINST THAT IT WAS THE CASE OF THE REVENUE THAT SINCE APPROVAL WAS GRANTED BY COMMISSIONER OF INCOME TAX IT SHOULD BE TAKEN AS COMPLIANCE WITH THE PROVI SIONS OF SECTION 151 OF THE ACT. IT WAS THE CASE OF THE ASSESSEE THAT PROVISIO NS OF SECTION 151(2) ARE MANDATORY WHICH REQUIRES SANCTION FROM JOINT COMMIS SIONER OF INCOME TAX AND AS THE APPROVAL WAS TAKEN FROM CIT THE INITIATION OF PROCEEDINGS ITSELF WAS BAD IN LAW. OUR ATTENTION WAS INVITED TO THE FOLLOWIN G OBSERVATIONS OF THEIR LORDSHIP FROM THE SAID DECISION: ./ I.T.A. NO.4999/MUM/2010 ( $ $ $ $ % % % % / ASSESSMENT YEAR : 2002-03 6 THE SECOND GROUND UPON WHICH THE REOPENING IS SOUG HT TO BE CHALLENGED IS THAT THE MANDATORY REQUIREMENT OF SECTION 151(2) HAS NOT BEE N FULFILLED. SECTION 151 REQUIRES A SANCTION TO BE TAKEN FOR THE ISSUANCE OF A NOTICE UNDER SECTION 148 IN CERTAIN CASES. IN THE PRESENT CASE AN ASSESSMENT H AD NOT BEEN MADE UNDER SECTION 143(3) OR SECTION 147 FOR THE ASSESSMENT YEAR 2004 -05. HENCE UNDER SUB-SECTION (2) OF SECTION 151 NO NOTICE CAN BE ISSUED UNDER SECTION 148 BY AN ASSESSING OFFICER WHO IS BELOW THE RANK OF JOINT COMMISSIONE R AFTER THE EXPIRY OF 4 YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR UNLES S THE JOINT COMMISSIONER IS SATISFIED ON THE REASONS RECORDED BY SUCH ASSESSIN G OFFICER THAT IT IS A FIT CASE FOR THE ISSUE OF SUCH NOTICE. THE EXPRESSION 'JOINT COM MISSIONER' IS DEFINED IN SECTION 2(28C) TO MEAN A PERSON APPOINTED TO BE A JOINT COM MISSIONER OF INCOME-TAX OR AN ADDITIONAL COMMISSIONER OF INCOME-TAX UNDER SECTIO N 117(1). IN THE PRESENT CASE THE RECORD BEFORE THE COURT INDICATE THAT THE ASSES SING OFFICER SUBMITTED A PROPOSAL ON MARCH 28 2011 TO THE COMMISSIONER OF INCOME-T AX (1) THANE THROUGH THE ADDITIONAL COMMISSIONER OF INCOME-TAX RANGE (I) T HANE. ON MARCH 28 2011 THE ADDITIONAL COMMISSIONER OF INCOME-TAX FORWARDED THE PROPOSAL TO THE COMMISSIONER OF INCOME-TAX AND AFTER RECORDING A GI ST OF THE COMMUNICATION OF THE ASSESSING OFFICER STATED THAT : 'AS REQUESTED BY THE ASSESSING OFFICER NECESSARY A PPROVAL FOR ISSUE OF NOTICE UNDER SECTION 148 MAY KINDLY BE GRANTED IN THE CASE IF APPROVED.' ON THIS A COMMUNICATION WAS ISSUED ON MARCH 29 201 1 FROM THE OFFICE OF THE COMMISSIONER OF INCOME-TAX (1) CONVEYING APPROVAL T O THE PROPOSAL SUBMITTED BY THE ASSESSING OFFICER. THERE IS MERIT IN THE CONTEN TION RAISED ON BEHALF OF THE ASSESSEE THAT THE REQUIREMENT OF SECTION 151(2) COU LD HAVE ONLY BEEN FULFILLED BY THE SATISFACTION OF THE JOINT COMMISSIONER THAT THI S IS A FIT CASE FOR THE ISSUANCE OF A NOTICE UNDER SECTION 148. SECTION 151(2) MANDATE S THAT THE SATISFACTION HAS TO BE OF THE JOINT COMMISSIONER. THAT EXPRESSION HAS A D ISTINCT MEANING BY VIRTUE OF THE DEFINITION IN SECTION 2(28C). THE COMMISSIONER OF INCOME-TAX IS NOT A JOINT COMMISSIONER WITHIN THE MEANING OF SECTION 2(28C). IN THE PRESENT CASE THE ADDITIONAL COMMISSIONER OF INCOME-TAX FORWARDED TH E PROPOSAL SUBMITTED BY THE ASSESSING OFFICER TO THE COMMISSIONER OF INCOME-TAX . THE APPROVAL WHICH HAS BEEN GRANTED IS NOT BY THE ADDITIONAL COMMISSIONER OF IN COME-TAX BUT BY THE COMMISSIONER OF INCOME-TAX. THERE IS NO STATUTORY P ROVISION HERE UNDER WHICH A POWER TO BE EXERCISED BY AN OFFICER CAN BE EXERCISE D BY A SUPERIOR OFFICER. WHEN THE STATUTE MANDATES THE SATISFACTION OF A PARTICULAR FUNCTIONARY FOR THE EXERCISE OF A POWER THE SATISFACTION MUST BE OF THAT AUTHORITY. WHERE A STATUTE REQUIRES SOMETHING TO BE DONE IN A PARTICULAR MANNER IT HA S TO BE DONE IN THAT MANNER. IN A SIMILAR SITUATION THE DELHI HIGH COURT IN CIT V. S PL'S SIDDHARTHA LTD. (ITA NO. 836 OF 2011 DECIDED ON SEPTEMBER 14 2011)-SINCE REPOR TED 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 WH ICH THE STATUTE MANDATES OF A DISTINCT AUTHORITY CANNOT BE SUBSTITUTED BY THE SAT ISFACTION OF ANOTHER. WE ARE IN RESPECTFUL AGREEMENT WITH THE JUDGMENT OF THE DELHI HIGH COURT. IN VIEW OF THE FINDINGS WHICH WE HAVE RECORDED ON S UBMISSIONS (I) (II) AND (IV) IT IS NOT NECESSARY FOR THE COURT TO CONSIDER SUBMISSION (III) WHICH HAS BEEN URGED ON BEHALF OF THE ASSESSEE. ONCE THE COURT HAS COME TO THE CONCLUSION THAT THERE WAS NO COMPLIANCE WITH THE MANDATORY REQUIREMENTS OF SECT IONS 147 AND 151(2) THE NOTICE REOPENING THE ASSESSMENT CANNOT BE SUSTAINED IN LA W. ./ I.T.A. NO.4999/MUM/2010 ( $ $ $ $ % % % % / ASSESSMENT YEAR : 2002-03 7 FOR THESE REASONS WE ARE OF THE VIEW THAT THE PETI TIONER WOULD BE ENTITLED TO SUCCEED. RULE IS MADE ACCORDINGLY ABSOLUTE BY QUASH ING AND SETTING ASIDE THE IMPUGNED NOTICE DATED MARCH 30 2011. THERE SHALL B E NO ORDER AS TO COSTS. 8. THUS IT WAS PLEADED BY LD. AR THAT ACCORDING TO THE ESTABLISHED FACTS OF THE PRESENT CASE APPROVAL HAS BEEN GRANTED BY CO MMISSIONER OF INCOME TAX INSTEAD OF JOINT COMMISSIONER OF INCOME TAX WHICH I S AUTHORIZED TO GRANT APPROVAL UNDER THE PROVISIONS OF SECTION 151 AND I N VIEW OF THE AFOREMENTIONED DECISION OF HONBLE JURISDICTIONAL HIGH COURT THE I SSUANCE OF NOTICE UNDER SECTION 148 SHOULD BE HELD TO BE NON-SUSTAINABLE IN LAW. 9. ON THE OTHER HAND ON THE AFOREMENTIONED ISSUE L D. DR RELIED UPON THE ORDER OF LD. CIT(A) VIDE WHICH REASSESSMENT PROCEED INGS HAVE BEEN HELD TO BE VALID. 10. WE HAVE HEARD BOTH THE PARTIES AND THEIR CONTEN TIONS HAVE CAREFULLY BEEN CONSIDERED. THE VALIDITY OR OTHERWISE OF REASSESSM ENT PROCEEDINGS WERE CHALLENGED BEFORE LD. CIT(A) BY WAY OF ADDITIONAL G ROUND. THE ISSUE TAKEN BEFORE US REGARDING JURISDICTIONAL DEFECT UNDER SECTION 151 WAS NOT RAISED BEFORE LD. CIT(A). HOWEVER IT IS DULY RECORDED IN THE ORDER OF LD. CIT(A) THAT THE AO HAD OBTAINED THE APPROVAL OF COMMISSIONER OF INCOME TA X ON 31/3/2009. IN SUPPORT THE ASSESSEE HAD ALSO FILED A LETTER ISSUED BY COMMISSIONER OF INCOME TAX WHICH IS REPRODUCED IN THE ABOVE PART OF THIS ORDER. THEREFORE THERE REMAINS NO DISPUTE ON THE FACT THAT RE-ASSESSMENT P ROCEEDINGS HAVE BEEN INITIATED ON THE APPROVAL RECEIVED BY THE AO FROM C OMMISSIONER OF INCOME TAX AND THE SAID APPROVAL WAS NOT GIVEN OF ADDITIONAL COMMISSIONER / JOINT COMMISSIONER OF INCOME TAX. THERE IS ALSO NO DISPU TE THAT THE APPROVAL HAS BEEN ISSUED AFTER A PERIOD OF FOUR YEARS FROM THE E ND OF THE RELEVANT ASSESSMENT YEAR. IF THESE FACTS ARE UNDISPUTED THEN IN AC CORDANCE WITH AFOREMENTIONED DECISION OF HONBLE JURISDICTIONAL HIGH COURT IT HA S TO BE HELD THAT THE REASSESSMENT PROCEEDINGS BASED ON AN APPROVAL GRANT ED BY COMMISSIONER OF INCOME TAX INSTEAD OF ADDITIONAL COMMISSIONER / JOI NT COMMISSIONER OF INCOME TAX ARE REQUIRED TO BE HELD TO BE INVALID. THE RE LEVANT PORTION OF ./ I.T.A. NO.4999/MUM/2010 ( $ $ $ $ % % % % / ASSESSMENT YEAR : 2002-03 8 AFOREMENTIONED DECISION HAS ALREADY BEEN REPRODUCED . RELYING THEREON WE DECIDE THIS ISSUE IN FAVOUR OF ASSESSEE. 10.11.2013 SO AS IT RELATE TO ISSUES RAISED BY REV ENUE IN ITS APPEAL WE HOLD THAT THEY HAVE BECOME INFRUCTUOUS IN VIEW OF OUR FINDIN GS THAT REASSESSMENT PROCEEDINGS ITSELF ARE INVALID AS ASSESSMENT DONE IN PURSUANCE THERETO WILL BE NON-EST. 11. IN THE RESULT THE APPEAL FILED BY THE REVENUE IS DISMISSED THOUGH ON DIFFERENT GROUND WHICH DOES NOT FORM PART OF GROUN DS OF APPEAL SUBMITTED BY THE REVENUE. ORDER PRONOUNCED IN THE OPEN COURT ON 10 /10/2013 . 0 ./% ' 1 2$ 3 10 /10//2013 / 4 SD/- SD/- ! (RAJENDRA) . . (I.P.BANSAL) ' /ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI; 2$ DATED 10/10/2013 . $ . .VM SR. PS 0 0 0 0 )-56 )-56 )-56 )-56 7 6%- 7 6%- 7 6%- 7 6%- / COPY OF THE ORDER FORWARDED TO : 1. &( / THE APPELLANT 2. )*&( / THE RESPONDENT. 3. 8 ( ) / THE CIT(A)- 4. 8 / CIT 5. 694 )-$ / DR ITAT MUMBAI 6. 4: ; / GUARD FILE. 0$ 0$ 0$ 0$ / BY ORDER *6- )- //TRUE COPY// < << < / = = = = (DY./ASSTT. REGISTRAR) / ITAT MUMBAI