IN THE HIGH COURT OF JUDICATURE AT BOMBAY
\nORDINARY ORIGINAL CIVIL JURISDICTION
\nINCOME TAX APPEAL NO. 1035 OF 2017
\nPr.Commissioner of Income Tax, Central-2. \u2026 Appellant.
\nV\/s.
\nM\/s.Khushbu Industries. \u2026 Respondent.
\nMr.Ashok Kotangale with Mr.Prabhakar R. and Mrs.Indu K.
\nfor the Appellant.
\nCORAM : M.S. SANKLECHA AND
\nNITIN JAMDAR, JJ.
\nDATE : 11 November 2019.
\nP.C. :
\nThis appeal under section 260-A of the Income Tax Act,
\n1961 (Act), challenges the order dated 19 October 2016 passed by
\nthe Income Tax Appellate Tribunal (Tribunal). The impugned order
\ndated 19 October 2016 is in respect of assessment year 2008-09.
\n2. The Revenue has only urged the following question of
\nlaw for our consideration:
\n\u201cWhether on the facts and in circumstances of the case and
\nin law, the Tribunal is correct in upholding the order of
\nCIT(A) in quashing the assessment order passed in the
\nproceedings u\/s 147 read with section 143(3) of the Act\u201d<\/p>\n
3. The impugned order of the Tribunal upheld the view
\ntaken by the Commissioner of Income Tax (Appeals) in the order
\ndated 12 April 2016 holding that the reopening proceedings under
\nsection 148 are bad as necessary sanction\/approval had not been
\nobtained in terms of section 151 of the Act. The impugned order of
\nthe Tribunal records that the sanction for issuing the impugned
\nnotice had been obtained from the Commissioner of Income Tax
\nwhen, in terms of section 151, the sanction had to be obtained from
\nthe Joint Commissioner of Income Tax. Thus, in the absence of
\nsanction\/approval being obtained from the appropriate authority as
\nmandated by the Act, the Tribunal held that the reopening notice
\nitself is without jurisdiction.<\/p>\n
4. Mr.Kotangale, learned counsel appearing in support of
\nthe appeal very fairly points out that the submission of the Revenue
\nthat the Commissioner of Income Tax is a higher authority and,
\ntherefore, the sanction obtained from him would meet the
\nrequirement of obtaining sanction from the Joint Commissioner of
\nIncome Tax in terms of section 151 of the Act will no longer survive.<\/p>\n
This in view of the decision of this Court in Ghanshyam K. Khabrani
\nv. Asst. CIT1 wherein, in identical circumstances, this Court held that
\nwhere the Act provides for sanction by the Joint Commissioner of
\nIncome Tax in terms of section 151, then the sanction by the
\n1 (2012) 346 ITR 443 (Bom)
\nCommissioner of Income Tax would not meet the requirement of the
\nAct and the reopening notice will be without jurisdiction.
\n5. In the above view, the question as proposed does not give
\nrise to any substantial question of law as the said issue has already
\nbeen concluded against the Revenue in view of the decision of this
\nCourt in Ghanshyam K. Khabrani v. Asst. CIT (supra). Appeal is,
\ntherefore, dismissed.
\nNITIN JAMDAR, J. M.S. SANKLECHA, J.<\/p>\n","protected":false},"excerpt":{"rendered":"
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<\/p>\n