PCIT vs. Khushbu Industries (Bombay High Court)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INCOME TAX APPEAL NO. 1035 OF 2017
Pr.Commissioner of Income Tax, Central-2. … Appellant.
V/s.
M/s.Khushbu Industries. … Respondent.
Mr.Ashok Kotangale with Mr.Prabhakar R. and Mrs.Indu K.
for the Appellant.
CORAM : M.S. SANKLECHA AND
NITIN JAMDAR, JJ.
DATE : 11 November 2019.
P.C. :
This appeal under section 260-A of the Income Tax Act,
1961 (Act), challenges the order dated 19 October 2016 passed by
the Income Tax Appellate Tribunal (Tribunal). The impugned order
dated 19 October 2016 is in respect of assessment year 2008-09.
2. The Revenue has only urged the following question of
law for our consideration:
“Whether on the facts and in circumstances of the case and
in law, the Tribunal is correct in upholding the order of
CIT(A) in quashing the assessment order passed in the
proceedings u/s 147 read with section 143(3) of the Act”

3. The impugned order of the Tribunal upheld the view
taken by the Commissioner of Income Tax (Appeals) in the order
dated 12 April 2016 holding that the reopening proceedings under
section 148 are bad as necessary sanction/approval had not been
obtained in terms of section 151 of the Act. The impugned order of
the Tribunal records that the sanction for issuing the impugned
notice had been obtained from the Commissioner of Income Tax
when, in terms of section 151, the sanction had to be obtained from
the Joint Commissioner of Income Tax. Thus, in the absence of
sanction/approval being obtained from the appropriate authority as
mandated by the Act, the Tribunal held that the reopening notice
itself is without jurisdiction.

4. Mr.Kotangale, learned counsel appearing in support of
the appeal very fairly points out that the submission of the Revenue
that the Commissioner of Income Tax is a higher authority and,
therefore, the sanction obtained from him would meet the
requirement of obtaining sanction from the Joint Commissioner of
Income Tax in terms of section 151 of the Act will no longer survive.

This in view of the decision of this Court in Ghanshyam K. Khabrani
v. Asst. CIT1 wherein, in identical circumstances, this Court held that
where the Act provides for sanction by the Joint Commissioner of
Income Tax in terms of section 151, then the sanction by the
1 (2012) 346 ITR 443 (Bom)
Commissioner of Income Tax would not meet the requirement of the
Act and the reopening notice will be without jurisdiction.
5. In the above view, the question as proposed does not give
rise to any substantial question of law as the said issue has already
been concluded against the Revenue in view of the decision of this
Court in Ghanshyam K. Khabrani v. Asst. CIT (supra). Appeal is,
therefore, dismissed.
NITIN JAMDAR, J. M.S. SANKLECHA, J.