The Calcutta High Court (HC) held that the approval from the non-authorised authority under section 151(ii) of the Income Tax Act,1961 invalidates the reopening.
K K Agarwal and Sons HUF, the petitioner stated that the assessment year involved for the reopening the assessment is the assessment year 2016-2017 and the appropriate authority for grant of approval in such case is the authorities under Section 151(ii) of the Income Tax Act, 1961.
It was evident from the record and instruction that the approval has been granted by principal CIT -9, Kolkata who is not the authority falls under Section 151(ii) of the Act as such the approval, in this case, is not an authority authorized under the law and such approval is notsustainable in law.
It was alleged that and given the legal position the impugned notice under Section 148A(b) of the Act and all subsequent proceedings are not sustainable.In a case other than a case falling under section 151(1), no notice shall be issued under section 148 by an Assessing Officer, who is below the rank of Joint Commissioner, unless the Joint Commissioner is satisfied, with the reasons recorded by such Assessing Officer, that it is a fit case for the issue of such notice.
As a section 143(3) order had not been passed, the Assessing Officer ought to have obtained the sanction of the Joint/ Additional CIT under section 151(2). Instead, he routed the file through the additional CIT and obtained the sanction of the CIT.
A Single member consists of Justice Md. Nizamuddin observed that quashing the impugned notice and subsequent proceedings will not be a bar on the part of the Income Tax authorities concerned to initiate any fresh proceeding in future by the law.
The court while disposing of the petition quashed the reopening procedure as it was from the grant or approval of a non-authorised authority.
Subscribe Taxscan Premium to view the JudgmentSupport our journalism by subscribing to TaxscanAdFree. Follow us on Telegram for quick updates.
