IN THE ITAT DELHI BENCH ‘G’
Sunint Investment & Technologies (P.) Ltd.
Versus
Assistant Commissioner of Income-tax
IT Appeal No. 2582 (Delhi) of 2011
[Assessment year 2001-02]
August 30, 2012
ORDER
S.V. Mehrotra, Accountant Member
This appeal filed by the assessee is against the order dated 25-02-2011 of the Ld. CIT(A)-XII, New Delhi for AY 2001-02.
2. Brief facts of the case are that the assessee filed its return of income on 31.10.2001 declaring total income of Rs.12,87,140/-. The Assessing Officer has observed that this return was processed u/s 143(1) of the Income Tax Act, 1961 on 15.05.2002. Thereafter, the case was reopened by serving notice u/s 148 of the Income Tax Act, 1961 on 28.03.2008. The assessee asked for the reasons for reopening the case and the same were supplied to the assessee vide letter dated 11.07.2008. The Assessing Officer has observed that on 23.12.2008, the assessee company filed an objection that the approval of CIT was taken in the name of “M/s Sun Ind Investments Technologies Pvt. Ltd.” and not in the name of assessee’s name which is M/s Sunint Investments & Technologies Pvt. Ltd. The Assessing Officer pointed out that this technical objection was not raised earlier when the hearing took place on 05.08.2008, 18.08.2008 and 12.08.2008. He further pointed out that the details of the case re-opened pertained to assessee and hence on mere typographical error, the assessee cannot take objection. He also referred section 292B and pointed out that no notice can be invalid merely by reason of any mistake, defect or omissions. On merits, the Assessing Officer observed that Sh. Mukesh Gupta, the main person and authorized signatory of M/s Rajkar Electricals & Electronics Pvt. Ltd. in whose account No. CA51276 maintained with Corporation Bank, Paschim Vihar, New Delhi-110063, the money was deposited in two amounts of Rs. 5,00,000/- each on 01.03.2008 and on the same date a demand draft of Rs. 10,00,000/- was purchased and given to the assessee company. He, therefore, made an addition of Rs. 10,00,000/- to the assessee’s income.
3. Before Ld. CIT(A), the assessee assailed the initiation of proceedings u/s 148, inter alia, on the ground that assessment was initiated u/s 147 without obtaining prior sanction as required u/s 151 of the Act. Ld. CIT(A) observed that since assessee did not raise any objection on this issue and submitted to the Jurisdiction of the Assessing Officer, the same cannot be challenged later on. On merits, Ld. CIT(A) upheld the Assessing Officer’s action. Being aggrieved, the assessee is in appeal before us.
4. Ld. Counsel submitted that as per section 151(2), since the assessment was completed u/s 143(1), the Assessing Officer was required to obtain sanction of the Joint Commissioner of Income Tax and not of CIT. Ld. Counsel further submitted that it is purely a legal issue going to the root of the matter and, therefore, can be raised at any stage of proceedings. Ld. Counsel relied upon the decision of Hon’ble Jurisdictional High Court in the case of CIT v. SPL’S Siddhartha Ltd. [2012] 345 ITR 223/204 Taxman 115 (Delhi)(Mag.)/17 taxmann.com 138 (Delhi) wherein it was held that u/s 151 of the Act, it was only the Joint Commissioner or Additional Commissioner who could grant the approval of issue of notice u/s 148. Where the approval was not granted by the Joint Commissioner but by Commissioner of Income Tax, this is not irregularity curable u/s 292B. It was held that the notice was not valid.
5. Ld. DR submitted that in the case of SPL’S Siddhartha Ltd., the facts were different. She submitted that in the said case, the matter was routed through the Additional Commissioner of Income tax but in the present case, it was not so routed. On 25.07.2012, when the case was taken up for hearing, Ld. DR was directed to call for assessment records along with approval for issuing notice u/s 148. Ld. DR produced the said approval on the date of hearing i.e 26.07.2010 which reads as under :-
No. ITO/Ward 9(3)/Asstt./2007-08/27
Office of the
Income Tax Officer,
Ward 9(3), Room No-180,
C.R. Building, I.P. Estate,
New Delhi-110002.
Dated 28/03/2008
To,
The Commissioner of Income Tax,
Delhi-III,
New Delhi.
(Through Proper Channel)
Sir,
Sub:-Approval of Issue of Notice u/s 148 of the I.T. Act, 1961 in the case of M/s Sun Ind Investments & Technologies Pvt. Ltd. for the A.Y 2001-02 reg.
Kindly refer to the above.
Please find enclosed herewith proposal in triplicate form duly recorded the reasons alongwith annexure ‘A’ for initiating proceeding u/s 148 for the A.Y 2001-02.
Since the Assessment record in these cases are not readily available. Now it is presumed for the safer side that the assessment were completed in these cases u/s 143(3) for the A.Y 2001-02, hence your kind approval for issue of notice u/s 148 is solicited u/s 151(1) of the I.T. Act.
Submitted for your kind approval.
Yours faithfully
Encls.: Proposal in one cases in triplicate.
(A.N. Verma)
Income Tax Officer
Ward 9(3), New Delhi.
Form for recording the reasons for initiating proceedings u/s 148 and for obtaining the approval of the Commissioner of Income Tax, Delhi-III, Delhi
