After expiry of 4 Years no notice u/s. 148 can be issued without approval of CCIT or CIT

According to Section 151(1) proviso if the Assessing Authority who is below the rank of Assistant Commissioner or the Deputy Commissioner want to re­open the ‘case after the expiry of 4 years unless the Commissioner is satisfied that it is a fit case for issue of that notice. In the present case the case is re­opened and a notice under section 148 is issued with the prior approval of Additional Commissioner of Income Tax Rewari and not with the approval of Commissioner. Additional Commissioner has been defined u/s 2(lC) and the Commissioner is defined under section 2(16).

It is cardinal principle of law that when a statute mandates the satisfaction of a particular functionary for the exercise of power, satisfaction must of that authority only, where a statute requires something to be done in a particular manner it has to be done in that manner. If it is a case so that the notice was not valid and was liable to be quashed. The Additional Commissioner of Income Tax is not a Commissioner within the meaning of section 2(16). The approval in this case has been granted is not by the Commissioner of Income Tax but by the Additional Commissioner of Income Tax. There is no statutory provision here under which a power to be exercised by an officer can be exercised by another officer. My above said line of argument based on the authority of Ghanshyam K. Khabrani Versus Assistant Commissioner of Income Tax and others Division Bench 346 ITR 443. The Additional Commissioner of Income Tax can not be Commissioner of Income Tax within the meaning of section 2(16). The Bombay High Court has held “there is no statutory provision under which a power to be exercised by an officer can be exercised by a superior officer when the statutes mandates the satisfaction of particular functionary for the exercise of the power, satisfaction must of that authority. Where a statute requires something to be done in a particular manner, it has to be done in that manner only. An Authority of Delhi High Court was discussed by the Bombay High -Court and the Judges in Bombay High Court said we are in respectful agreement with the judgment of the Delhi High Court in case Commissioner of Income Tax Versus. SPL’s Sidharth Limited Division Bench 345 ITR Page 223 (Delhi High Court) has clearly expressed their views that if statute requires a things to be done in a certain manner it shall be done in that manner alone and the court would not accept its being done in some other manner. If the statutory authority has been vested with the jurisdiction he has to be exercised it according to be its own discretion. The Delhi High Court in the above said judgment has also held that if it is not done that is if the approval is to be granted by Commissioner but the case is re-opened with the approval of Additional Commissioner. This was not irregularity curable under section 292 B. The notice was not valid. If the Assessing Officer exercised his jurisdiction under section 147 but merely act at the behest of any superior authority, it must be held that it is clear in this case in hand that Commissioner of Income Tax did not apply his mind or gave any sanction. The Additional Commissioner of Income Tax and Commissioner of Income Tax are quite separate authority. Delhi High Court has held “Section 116 of the Act also defines the Income Tax Authorities as a different and distinct authority. Such different and distinct authorities have to exercise their powers in accordance with law as per power given to tdem in specified circumstances. If powers confirmed on a particular authority are arrogated by other authority without mandate law, it will create chaos in the administration of law and hierarchy of administration will mean nothing. Satisfaction of one authority cannot be substituted by satisfaction by another authority. It is tri that when a statute requires, the thing to be done in a certain manner, it shall be done in that manner alone and the court could not accept its being done in some other manner.

The Hon’ble Apex Court in case Anirudhsinh Ji Karan Singh Ji Jedeja Versus State of Gujrat (1995) 5 SSC 302 has held that if statutory authority has been vested with jurisdiction he has to exercise it according to its own discretion. If discretion is exercised under direction or in compliance with the some higher authorities in section then it will be case of failure of exercise discretion altogether.

Keeping in view of above said views expressed by the different High Court and Apex Court it is very much clear that the approval/ sanction to re­open the case and issued the notice u/ s 148 is to be of the same officer to whom law requires and not by the different officer. In the present case as per section 151(1) proviso if the case is to be re-opened after expiry of 4 years the approval/satisfaction should be of Commissioner of Income Tax only but in the present case the case is re-opened and notice 148 has been issued of Additional Commissioner of Income Tax who is different authority then the Commissioner of Income Tax as per section 2 of the Act and on this ground the notice issued under section 148 is bad in law and liable to be quashed.