2008-VIL-568-BOM-DT

Equivalent Citation: [2010] 321 ITR 495 (Bom)

BOMBAY HIGH COURT

398 of 2001

Date: 12.02.2008

COMMISSIONER OF INCOME-TAX

Vs

SMT. SUMAN WAMAN CHAUDHARY

B. M. Chatterji with Ms. P. P. Bhosale and P. S. Sahadevan for the appellant.
S. N. Inamdar and A. K. Jasani for the respondent.

BENCH

F. I. REBELLO and R. S. MOHITE JJ.

JUDGMENT

1. While holding that the notice issued was without jurisdiction, the Tribunal noted that under section 151 the Assessing Officer who is below the rank of Assistant Commissioner or Deputy Commissioner has to record the reasons and the said reasons require approval of the Deputy Commissioner or the Joint Commissioner and he has to satisfy that the reasons recorded by the Assessing Officer are sufficient for issue of such notice. The Tribunal has recorded a finding of fact that the Income-tax Officer has recorded the reasons on December 6, 1989, and on the same date notice was issued. The Tribunal has further held that the contention of the assessee that the approval of the Deputy Commissioner was not obtained by the Income-tax Officer before issuance of notice has not been controverted by the learned Departmental representative and on this and other reasons it is held that the notice is not in conformity with the section and is without jurisdiction. This finding of the Income-tax Appellate Tribunal that prior approval was required has not been controverted. Only ground made is that the Income- tax Appellate Tribunal concerning section 151(2) proceeded erroneously. In our opinion, this is a clear finding and under section 151(2) prior approval of the concerned authority before issuance of notice is required. Considering the finding recorded by the Income-tax Appellate Tribunal under section 151, it is not necessary to discuss the finding on the point of issue of notice under section 292B.

2. In view of the above facts, the order of the Income-tax Appellate Tribunal cannot be faulted and consequently the appeal dismissed.

 

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