Background
It is a matter relating to validity of re-opening of assessment on a technical ground in the case of Mayurbhai Mangaldas Patel v ITO. The learned Ahemdabad ITAT Bench has noted all the facts and circumstances of the case and the law as applicable in very clear manner.
It has kept some issues open or ‘has not explained in sufficient detail.
Author’s opinion
The bare reading of
- legislative enactment even without referring to any judicial precedence or
- after perusal of judicial precedence,
the case is a covered matter and in favour of the assessee.
The bench was of the opinion that, for such hyper technical reasons, the expected end result of Income Tax Act, 1961 should not be missed. But the bench should have referred the case before a larger bench for settling the matter.
Observations of higher judiciary about judges.
In this context, we may note the eloquent statement of Benjamin Cardozo who said:
“The judge is not a knight errant, roaming at will in pursuit of his own ideal of beauty and good-ness.”
In this regard, the profound statement of Felix Frankfurter Clark, Tom C., “Mr. Justice Frankfurter :’A Heritage for all Who Love the Law”, 51 A.B.A.J. 330, 332 (1965) is apposite to reproduce:
“For the highest exercise of judicial duty is to subordinate one’s personal pulls and one’s private views to the law of which we are all guardians those impersonal convictions that make a society a civilized community, and not the victims of personal rule.”
The learned Judge has further stated in Foreword, to Memorial issue for Robert H. Jackson, 55 Columbia Law Review (April, 1955) p. 436
“What becomes decisive to a Justice’s functioning on the Court in the large area within which his individuality moves is his general attitude toward law, the habits of the mind that he has formed or is capable of unforming, his capacity for detachment, his temperament or training for putting his passion behind his judgment instead of in front of it. The attitudes and qualities which I am groping to characterize are ingredients of what compendiously might be called dominating humility.”
In Shiv Mohan Singh v. The State (Delhi Administration) (1977) 2 SCC 238, the Court has observed:
“… a Judge even when he is free, is still not wholly free; he is not to innovate at pleasure; he is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness; he is to draw inspi-ration from consecrated principles’…”
Om Prakash Chautala v. Kanwar Bhan (2014) 5 SCC 417
“19. It needs no special emphasis to state that a Judge is not to be guided by any kind of notion. The decision-making process expects a Judge or an adjudicator to apply restraint, ostracise perceptual subjectivity, make one’s emotions subservient to one’s reasoning and think dispassionately. He is expected to be guided by the established norms of judicial process and decorum.”
And again:
“20. A Judge should abandon his passion. He must constantly remind himself that he has a singular master “duty to truth” and such truth is to be arrived at within the legal parameters. No heroism, no rhetorics.”
Dwarikesh Sugar Industries Ltd. v. Prem Heavy Engineering Works (P) Ltd. and another (1997) 6 SCC 450
“32. When a position in law is well settled as a result of judicial pronouncement of this Court, it would amount to judicial impropriety to say the least, for the subordinate courts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position. Such judicial adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate courts in not applying the settled principles and in passing whimsical orders which necessarily has the effect of granting wrongful and unwarranted relief to one of the parties. It is time that this tendency stops.”
Author’s conclusion
The objective of bench is laudable that for some technicalities revenue should not be depreived from its case on merits but it should have chosen approipriate path.
Citation of the case
Mayurbhai Mangaldas Patel v ITO – ITAT – AHMEDABAD ‘A’ BENCH dated 30th November 2017 [I.T.A. No.3451/Ahd/2014, Assessment Year : 2005-06]
Question
1. On the facts and in circumstances of the case as well as law on the subject, the learned Commissioner of Income-tax (Appeals) has erred in confirming the action of Assessing Officer in reopening the assessment u/s 147 of the Act.
2. On the facts and in circumstances of the case as well as law on the subject, the learned Commissioner of Income-tax (Appeals) has erred in confirming the action of Assessing Officer in reopening the assessment u/s 147 of the Act even when conditions required to be fulfilled u/s 151 was not been complied by assessing officer.
3. The appellant says and submits that the AO forwarded the proposal for reopening of the assessment to CIT Gandhinagar for his approval through JCIT. The JCIT expressed satisfaction about the recording of reasons and forwarded to CIT. The CIT approved the proposal on 30-03-2011 and received by the AO on 04-04-2011. The Notice under Section 148 was issued on 30-03-2011. Since the notice issued is prior to the approval of the CIT, it is bad in law. Under Section 151(2) the AO is required to take approval of JCIT but he has not taken JCIT approval and has taken approval of CIT. None obtaining of permission of the authority as prescribed in the Act is bad in law [Ghanshyam K. Khabrani V/s. ACIT 346 ITR 443 [Mum] and CIT V/s. SPL’s Siddhartha Ltd. 345 ITR 223 (Del)].
Answer
Ground nos. 1,2 and 3 are thus dismissed, and, as we have stated earlier as well, no other ground of appeal was pressed before us.
Facts of the case-:
For re-opening the case u/s 147 and to issue notice u/s 148, the AO sent the case for appropriate approval for AY 2005-06 around at the end of the month of March 2011. Thus period of 4 years had lapsed.
The AO issued the notice on 30-3-2011 whereas the approval was received on 4-4-2011.
Addl CIT – recorded satisfaction on 28-3-2011
CIT recorded satisfaction on 30-3-2011
Thus factually the AO issued the notice before receipt of approval from Addl CIT and / or CIT.
Legislative Enactment
abbreviations used
