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S. 147/151: Sanction of CIT Instead of JCIT Renders Reopening Void
The AO issued a notice u/s 148 to reopen the assessment for AY 2004-05. As no assessment had been made u/s 143(3) or s. 147 for that year and four years had expired, the AO was required to obtain the sanction of the JCIT (which included an Addl. CIT) u/s 151(2). The AO submitted a proposal to the CIT through the Addl. CIT. The Addl. CIT forwarded the proposal to the CIT and requested the CIT to grant sanction, which the CIT did. The assessee challenged the reopening inter alia on the ground that as s. 151(2) required the JCIT/Addl. CIT to grant approval, the approval of the CIT was not valid. HELD upholding the challenge:
There is merit in the contention of the assessee that the requirement of s. 151(2) could have only been fulfilled by the satisfaction of the JCIT that this is a fit case for the issuance of a notice u/s 148. S. 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 s. 2(28C). The CIT is not a JCIT within the meaning of s. 2(28C). The Additional Commissioner forwarded the proposal submitted by the AO to the CIT. The approval which has been granted is not by the Addl. CIT but by the CIT. There is no statutory provision under which a power to be exercised by an officer can be exercised 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 has to be done in that manner (SPL’s Siddhartha Ltd followed)
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