COMMISSIONER OF INCOME TAX Vs. RESHMA ARIF

JUDGEMENT

(1.) THE appeal is admitted on the question nos. 1 and 2 as framed in the memo of appeal and is being heard with the consent of the parties. Heard Shri Shambhu Chopra, learned counsel for the appellant and Shri S.D. Singh for the respondent.

(2.) THIS Appeal under Section 260A of the Income Tax, Act, 1961 (hereinafter called the "Act, 1961") has been filed against the judgment and order of the Income Tax Appellate Tribunal, Lucknow Bench, Lucknow (hereinafter called the "Tribunal") dated 21/9/2007 in I.T.A. No.06/LUC/2006 & C.O.No.11/Luc/2006 for the Assessment Year 1995 -96. The assessment was made for the year in question by order of the Assessing Officer dated 28/3/2002. A notice under Section 148 of the Act, 1961 dated 22/5/2000 was issued by the Assessing Officer with the previous approval of the Joint Commissioner of Income Tax. The Assessing Officer completed the assessment and issued notice of demand and Challan. Assessee filed an appeal before the CIT(Appeals) which was disposed of. Appeal was filed by the Revenue before the Tribunal against which cross objection was filed by the assessee. The assessee in her cross objection raised a ground that initiation of re -assessment proceedings under Sections 147/148 of the Act, 1961 was without jurisdiction on the ground that necessary sanction as required by Section 151 (2) of the Act, was not obtained and notice under Section 148 of the Act has been issued by the Income Tax Officer. The Tribunal relying on a judgment of this Court in Dr. Shashi Kant Garg Vs. Commissioner of Income -Tax & Ors,(2006) 285 ITR 158 (All), held that notice having been issued by the Assessing Officer entire proceedings is vitiated. The Tribunal observed in paragraph 7 which is to the following effect:

(3.) LEARNED counsel for the appellant submits that after the approval by the Joint Commissioner of Income Tax, notice is not necessary to be issued by the Joint Commissioner, but it can be very well be issued by the Assessing Officer. He submits that in the present case notice was issued by the Assessing Officer after obtaining approval by the Joint Commissioner and there was no error in the notice issued to the petitioner under Section 148 of the Act, and the Tribunal while taking erroneous view of the matter held that the entire proceedings were without jurisdiction.