Case Name: AMRUTBHAI G PRAJAPATI vs ITO, WARD-1
Forum: Ahmedabad ITAT
- AO issued notice u/s 148 of the Act on 27.03.2015 followed by notice u/s 142(1) on 22.06.2015.
- The assessee filed the return of income on 05.01.2016 in response to notice under section 148 of the Act.
- On obtaining approval and memo u/s 151 it is seen that the approval is totally silent on date of approval and JCIT marked only ‘yes’ showing his purported satisfaction.
- Aggrieved, the assessee appealed to the tribunal.
- Notice u/s 142(1) predated the filing of return u/s 148 of the act.
- The assessee was nonchalant towards performing his responsibilities, non-issuance of notice u/s 143(2) is not at all valid reason to challenge re-assessment proceedings.
- Reliance was placed on the decision of Delhi High court in CIT vs. Madhya Bharat Energy Corporation Ltd. (2012) 337 ITR 389.
- The learned AR for the assessee submitted that the AO has wrongfully usurped jurisdiction under s.147 of the Act contrary to the mandate of law for as many as three reasons;
- The reasons recorded do not meet the requirement of law under s.147 of the Act
- The approval given by the superior authority under s.151 of the Act is without any date and therefore it is not known whether such approval has been obtained after the issuance of notice under s.148(2) of the Act or prior thereto.
- Notice under s.143(2) of the Act has been admittedly not issued by the AO while finalizing the assessment under s. 147 of the Act appealed against.
- The tribunal observed, the approval under s.151 of the Act is statutory in nature and a pre-condition to enable the AO to put the proceedings under s.147 of the Act in operation.
- In the absence of any date, it will be difficult to speculate the actual date of approval. The approval, if granted, after the issuance of notice under s.148 of the Act would be a nullity in law
- The onus was on Revenue to establish that the approval was taken prior to the issuance of notice under s.148 of the Act. The onus remains undischarged.
- Therefore, approval granted by the JCIT cannot be reckoned to be a valid approval in the peculiar facts
- Accordingly, the reassessment order passed u/s 143(3) r.w.s 147 was quashed.
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Courtesy, CA Jayraj Dhakan, Partner at M/s. Dhakan & Associates – Surat and our Vox Analytica subscriber.