# Mr. Deepak Gupta v. Assistant Commissioner Income Tax Noida & Ors

- **Citation:** (2020) 1 ILRA 1338
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-17
- **Case number:** Writ Tax No. 1313 of 2019
- **Bench:** Biswanath Somadder, Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mr-deepak-gupta-v-assistant-commissioner-income-tax-noida-ors-45539
- **Pages:** 9

## Headnote

A. Tax - Income Tax Act, 1961: Section
131, 142(1), 147, 148, 151 - Scope of the
expression 'reason to believe' discussed.
The word 'reason' in the phrase 'reason to
believe' would mean cause or justification. If
the Assessing Officer has cause or justification
to know or suppose that income has escaped
assessment, it can be said to have reason to
believe the same. The expression cannot be
read to mean that the Assessing Officer should
have finally ascertained the fact by legal
evidence or conclusion. (Para 19)

The objections of the petitioner were dealt with
on a point to point basis. In order dated
26.11.2019 it was found that necessary prerequisite of S.147 that "there should be
1340 INDIAN LAW REPORTS ALLAHABAD SERIES
escapement of income" stood fulfilled. The
reasons recorded in that regard are found to be
valid. Due approval u/s 151 was taken from the
competent authority. (Para 25, 28)

B. Income Tax Act, 1961: Section 151 -
Approval u/s 151, prior to initiation of
proceedings u/s 148 is a jurisdictional
pre-requisite and is not liable to be
interfered with in the light of insufficient
pleadings. Not appending approval along
with objection is not sufficient to decline
the presumption of correctness in favour
of authorities. However, the assessee is
fully entitled to a copy of the order
passed u/s 151 and correspondingly, the
Assessing Officer is obliged to hand-over
a copy of the same, as and when the
assessee seeks for it. (Para 9, 10, 28, 29)
Petition
disposed
of.
Reassessment
proceedings are not interfered with.

Precedent followed:

## Text

1 All. M/s Dabur India Ltd. Vs. Commissioner of CGST, Ghaziabad & Ors.
1339
perverse or not. The powers of judicial
review are thus distinct from powers of an
appellate court. The order of Appellate
Authority can be judicially reviewed and
not appealed against.

54. The courts exercising judicial
review do not ordinarily substitute the
decision
of
the
authority
by
their
judgment. Merely because two views are
possible, a court sitting in judicial review
shall not exercise its discretion in favour
of an alternative view to that of the
authority.

55. From the records pleadings and the
arguments of the learned counsel for both
the parties, this Court finds that the
petitioners were given full opportunity of
hearing before the authorities below. The
Appellate Authority as well as Original
Authority have adhered to the principles of
natural
justice
while
deciding
the
controversy. The order of the Appellate
Authority assailed in the instant writ petition
reflects due application of mind to the
relevant facts and material in the record. The
order is supported with cogent reasons. No
arbitrariness or perversity in the findings of
the Appellate Authority could be pointed out
during the course of arguments. In fact two
views are not even possible in the facts of
this case. The Appellate Authority as well as
the Original Authority have observed full
procedural propriety.

56. This is not a fit case to judicially
review the impugned order. Consequently,
we decline to exercise our discretionary
jurisdiction under Article 226 of the
Constitution of India in favour of the
petitioner.

57. In the wake of the preceding
discussion, we find that there is no
palpable infirmity in the classification of
the product in the order passed by the
Appellate Authority. The order passed by
the Appellate Authority is liable to be
upheld and stands affirmed accordingly.

58. The writ petition is misconceived
and is liable to be dismissed and is
accordingly dismissed.
----------
(2020)1ILR 1338

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.01.2020

BEFORE
THE HON'BLE BISWANATH SOMADDER, J.
THE HON'BLE AJAY BHANOT, J.

Writ Tax No. 1313 of 2019

Mr. Deepak Gupta ...Petitioner
Versus
Assistant Commissioner Income Tax Noida
& Ors. ...Respondents

Counsel for the Petitioner:
Sri R.R. Agarwal, Sri Suyash Agarwal

Counsel for the Respondents:
S.S.C.

A. Tax - Income Tax Act, 1961: Section
131, 142(1), 147, 148, 151 - Scope of the
expression 'reason to believe' discussed.
The word 'reason' in the phrase 'reason to
believe' would mean cause or justification. If
the Assessing Officer has cause or justification
to know or suppose that income has escaped
assessment, it can be said to have reason to
believe the same. The expression cannot be
read to mean that the Assessing Officer should
have finally ascertained the fact by legal
evidence or conclusion. (Para 19)

The objections of the petitioner were dealt with
on a point to point basis. In order dated
26.11.2019 it was found that necessary prerequisite of S.147 that "there should be
1340 INDIAN LAW REPORTS ALLAHABAD SERIES
escapement of income" stood fulfilled. The
reasons recorded in that regard are found to be
valid. Due approval u/s 151 was taken from the
competent authority. (Para 25, 28)

B. Income Tax Act, 1961: Section 151 -
Approval u/s 151, prior to initiation of
proceedings u/s 148 is a jurisdictional
pre-requisite and is not liable to be
interfered with in the light of insufficient
pleadings. Not appending approval along
with objection is not sufficient to decline
the presumption of correctness in favour
of authorities. However, the assessee is
fully entitled to a copy of the order
passed u/s 151 and correspondingly, the
Assessing Officer is obliged to hand-over
a copy of the same, as and when the
assessee seeks for it. (Para 9, 10, 28, 29)
Petition
disposed
of.
Reassessment
proceedings are not interfered with.

Precedent followed:

1. Assistant Commissioner of Income Tax Vs
Rajesh Jhaveri Stock Brokers (P) Ltd., (2007)
291 ITR 500 (Para 19)

2. Prashant S. Joshi Vs Income Tax Officer,
Ward 19 (2) (4), (2010) 324 ITR 154 (Para 20)

3. N.D. Bhatt, IAC Vs I.B.M. World Trading
Corporation, (1995) 216 ITR 811 (Para 21)

4. Hindustan Lever Ltd. Vs R.B. Wadkar, (2004)
268 ITR 332 (Para 22)

Present petition is against the notice
dated 22.10.2019, 'reasons to believe'
recorded on 22.03.2019 and orders dated
28.10.2019 and 26.11.2019.

(Delivered by Hon'ble Biswanath
Somadder,J. & Hon'ble Ajay Bhanot,J.)

1. The Revenue drew proceedings
against
the
petitioner-assessee
for
reassessment
of
income
which
had
allegedly escaped assessment for the
Assessment Year 2012-13. The petitioner
has assailed various orders taken out by
the Revenue at different stages in
pursuance of the reassessment proceedings
initiated under the relevant provisions of
the Income Tax Act, 1961 (hereafter
referred to as (I.T. Act, 1961)

2. The petitioner has assailed the notice
issued under Section 142 (1) of the I.T. Act,
1961 dated 22.10.2019 requiring the petitioner
to furnish details, documents and accounts
which were necessary to process the case under
the relevant provisions of law. The petitioner
has also impugned the "reasons to believe"
recorded on 22.03.2019 by the assessing officer
to support the formation of opinion of the
Revenue as required under Section 147 of the
I.T. Act, 1961. Lastly the petitioner has laid a
challenge to the orders dated 28.10.2019 and
26.11.2019 disposing of the objections of the
petitioner against the issuance of the notice
under Section 148 of the I.T. Act, 1961 for the
Assessment Year 2012-13.

3. Sri R.R. Agarwal, learned Senior
Counsel assisted by Sri Suyash Agarwal,
learned counsel for the petitioner contends
that the only submission made on behalf of
the petitioner is that the mandatory prior
approval required under Section 151 of the
I.T.
Act,
1961
from
the
Principal
Commissioner, Income Tax, Noida, was
not obtained before initiation of the
aforesaid reassessment proceedings. In the
absence of such approval under Section
151 of the I.T. Act, 1961 from the
competent
authority
the
proceedings
against the petitioner which are assailed in
the instant writ petition, have no legs to
stand on and are devoid of jurisdiction.
This is the sole submission made by the
learned Senior Counsel for the petitioner.

4. Per contra, learned counsel for the
Revenue, Sri Subham Agarwal calls
attention to various assertions made in the
1 All. Mr. Deepak Gupta Vs. Assistant Commissioner Income Tax, Noida & Ors.
1341
orders impugned dated 28.10.2019 and
26.11.2019 to contend that the requisite
approval from the competent authority
under Section 151 of the I.T. Act, 1961
was taken prior to the initiation of the
proceedings in the manner contemplated
by law. He further contends to the material
on the basis of which the satisfaction was
arrived at by the authorities to come to the
conclusion that income of the petitioner
had
escaped
assessment
for
the
Assessment Year 2012-13 was credible
and duly considered by the Revenue
before initiating reassessment proceedings.

5. Heard learned counsel for the
parties.

6. The sole contention of the
petitioner-assessee that prior approval
required from the competent authority
under Section 151 of the I.T. Act, 1961
was not obtained before issuing notice
under Section 148 of the I.T. Act, 1961
will be considered first. The objection in
this regard was also taken by the assessee
before the authorities below. It was raised
in the objections against issuance of notice
under Section 148 of the I.T. Act, 1961.

7. The assessing authority dealt with
the aforesaid objection regarding grant of
prior approval by the competent authority
under Section 151 of the I.T. Act, 1961
before issuance of notice under Section
148 of the I.T. Act, 1961. The assessing
authority in its order dated 28.10.2019
specifically recorded "Further, the notice
u/s 148 was issued after taking prior
approval u/s 151 from the Ld. Pr.
Commissioner of Income Tax, Noida."

8.

Similarly
the
order
dated
19.11.2019 disposing of the self same
objection of the petitioner-assessee against
the issuance of notice under Section 148 of
the I.T. Act, 1961 stated as follows:

"In this regard, please find the
copy of approval taken from higher
authorities and copy of statement of Shri
Ashok Kumar Kayan."

9. The findings returned by the
authorities in the orders disposing of the
objections of the petitioner under Section
148 of the I.T. Act, 1961 are official acts
and hence attract the presumption of
correctness in their favour. This legal
presumption of correctness is the prop and
the pillar of legitimacy of all official acts.
The presumption is rebuttable. However,
the burden lies upon the petitioner to rebut
the presumption. The petitioner on his part
has taken the following plea in the writ
petition to rebut the said presumption:

"That
the
order
of
the
respondent no.1, dated 28.10.2019 in para
3.2 as stated that it is supplying the copy
of the approval of the respondent no. 2,
granted u/s 151 (1) of the Act, after
accepting the objection of the petitioner
relating
to
the
decision
of
Sabh
Infrastructure Ltd. (Supra) & Godawari
Saraf (Supra) but no such approval was
appended along with the objection dated
26.11.2019, as such the petitioner has
reason to believe that no such mandatory
approval as provided u/s 151 (1) of the
Act, has been granted by the respondent
no. 2, in pursuance of the guidelines of
Sabh Infrastructure Ltd. (supra)."

10. We are afraid the aforesaid
pleading is deficient and does not at all
discharge the burden of proof which lay
squarely upon the petitioner to reverse the
presumption of correctness of the findings
in the orders passed by the revisional
1342 INDIAN LAW REPORTS ALLAHABAD SERIES
authorities in discharge of their official
duties. There is no reason or basis to
decline the presumption of correctness in
favour of the said findings so recorded in
the orders passed by the revisional
authorities
regarding
approval
under
Section 151 of I.T. Act, 1961 before
initiation of proceedings under Section
148 of the I.T. Act, 1961. This Court has
not been shown any reason or material to
doubt the correctness of the finding
recorded in the orders dated 28.10.2019
and 26.11.2019 that the notice under
Section 148 of the I.T. Act, 1961 was
issued after taking prior approval under
Section 151 of the I.T. Act, 1961 from the
Ld. Pr. Commissioner of Income Tax,
Noida. This finding has not been shown to
be perverse in any manner and is not liable
to be interfered with by this Court. The
argument on behalf of the petitioner is
accordingly rejected.

11. There is more to the controversy.

12. The "reasons to believe" of the
Assessing Officer that income had escaped
assessment
have
been
recorded
in
meticulous detail on 22.03.2019 by the
assessing authority. The material on which
such "reasons to believe" were founded are
also disclosed in the order. The order dated
22.03.2019
passed
by
the
Deputy
Commissioner of Income Tax, Circle-1,
Noida, regarding sufficiency of "reasons to
believe" on which foot the proceedings
under Section 147 of the I.T. Act, 1961 are
liable to be initiated, contains a recital
regarding
information
from
credible
sources regarding tax fraud in the case of
M/s DLS Exports Pvt. Ltd. and related
beneficiaries.

13. The enquiry made in pursuance
of the aforesaid information revealed that
one Devesh Upadhyay a well known
Kolkata based entry operator admitted that
he used the bank accounts of the
companies which were under his sole
control and management for layering the
funds
and
providing
accommodation
entries in the form of bogus Share
Capital/Premium,
bogus
LTCG/STCG.
Statements of Ashok Kayan, Bikash
Surekha and Sunil Kayan were also
recorded on oath under Section 131 of the
I.T. Act, 1961. The said persons in their
statements
admitted
that
their
bank
accounts were used for layering funds and
providing accommodation entries in the
form of bogus Share Capital/Premium,
bogus
LTCG/STCG
to
several
beneficiaries. The name of the petitioner
appeared in the list of the beneficiaries.

14. In the face of such statements and
evidences it was recommended that during
assessment proceedings the Assessing
Officer is required to record the statements
again for corroborating the evidences so
collected.

15. In the wake of such material
emanating from the said enquiry the
Deputy Commissioner of Income Tax,
Circle-1, Noida recorded his satisfaction
and set forth his "reasons to believe"
regarding the escapement of tax in the
following manner:

" I have perused the above
information and it is seen that the name of
assessee Shri Deepak Gupta is appearing
at Sr. No. 125 and it is seen that the
assessee is one of the beneficiaries and
received Rs. 49,10,240/- from the sale
proceeds of the shares of M/s DLS Exports
Pvt. Ltd. From the enquiries conducted, it
has been established that M/s DLS Exports
Pvt. Ltd, was involved in layering of funds
1 All. Mr. Deepak Gupta Vs. Assistant Commissioner Income Tax, Noida & Ors.
1343
and providing accommodation entries in
the form of bogus LTCG/STCL to several
beneficiaries and assessee is one of them. I
have analysed the details from the return
filed by the assessee for A.Y. 2012-13 and
it is seen that the assessee has not
declared any Capital Gain in his return of
income. It is clear from the details
available on record that the assessee has
concealed
the
capital
gain
of
Rs.
40,10,240/- has escaped assessment for AY
2012-13 with the meaning of provisions of
Section 147 of the I.T. Act, 1961."

16. Accordingly proceedings under
Section 147 of the I.T. Act, 1961 were
initiated to assess the escaped income for
Assessment Year 2012-13.

17. At this stage it would be apposite
to reflect on some relevant aspects of the
statements given by Ashok Kumar Kayan
under Section 131 of the I.T. Act, 1961
under oath before the income tax authority
at Kolkata which was part of the
investigations which led to unearthing of
the
surreptitious
transactions
which
facilitated the escapement of assessment.
In the telling of the said Ashok Kumar
Kayan under oath the modus of operandi
of the parties to the bogus transactions to
facilitate escapement of income was thus
described:

"Q.7 Please state the modus of
operandi in respect to providing bogus
LTCG/STCL through Penny Stock.

Ans. I would like to state that
there was a syndicate working in Penny
Stock.
At
first
level,
client
with
unaccounted cash approach to the entry
operators for getting LTCG. The entry
operator in turn approach a set of broker
who are in their network. The brokers
work in co-ordination with each other so
that trades are time synchronised and the
scrips remains with cartel of broker and
entry operator only. The share prices are
rigged so that a penny stock gets a high
value over a period of one year. Once, the
scrips are retain beyond a period of one
year in the clients accounts they are sold
to some jammakharchi company which are
operated by the same set of entry operator
so the client get LTCG. Further, since the
jammakharchi client has purchased the
scrips at the higher rate, the rates are
lowered over a period of time so that they
get capital losses which they can claim in
their return of income. Hence, while the
individual clients incur long term capital
gain, the jamma kharchi company clients
earns short term capital loss and there is
tax evasion at both the levels."

18. A perusal of the "reasons to
believe" required under Section 147 of the
I.T. Act, 1961 and stated in the order dated
22.03.2019 establishes the fact that the
escapement of the income of the petitioner
from
assessment
for
the
relevant
assessment years was part of a larger
network which facilitated defrauding of
the
Revenue
on
an organised
and
systematic
basis.
The
authority
had
credible material before it to come to this
conclusion. Further the authority while
recording its reasons under Section 147 of
the I.T. Act, 1961 on 22.03.2019 duly
applied its mind to all the relevant
materials in the record.

19. The scope of the expression
"reason to believe" and the nature of the
belief formed by the assessing officer that
the income for any assessment year has
escaped assessment arose for consideration
before the Hon'ble Supreme Court in
Assistant Commissioner of Income Tax
Vs Rajesh Jhaveri Stock Brokers (P)
1344 INDIAN LAW REPORTS ALLAHABAD SERIES
Ltd. reported at (2007) 291 ITR 500. The
Hon'ble Supreme Court in Asstt. CIT Vs
Rajesh Jhaveri Stock Brokers (P) Ltd
(supra) held thus:

"Section 147 authorises and permits
the Assessing Officer to assess or reassess
income chargeable to tax if he has reason to
believe that income for any assessment year
has escaped assessment. The word 'reason' in
the phrase 'reason to believe' would mean
cause or justification. If the Assessing Officer
has cause or justification to know or suppose
that income had escaped assessment, it can be
said to have reason to believe that an income
had escaped assessment. The expression
cannot be read to mean that the Assessing
Officer should have finally ascertained the fact
by legal evidence or conclusion........At that
stage, the final outcome of the proceeding is
not relevant. In other words, at the initiation
stage, what is required is 'reason to believe',
but not the established fact of escapement of
income. At the stage of issue of notice, the only
question is whether there was relevant
material on which a reasonable person could
have formed a requisite belief. Whether the
materials would conclusively prove the
escapement is not the concern at that stage.
This is so because the formation of belief by
the Assessing Officer is within the realm of
subjective satisfaction."

20. Dealing with the scheme of
Section 147 to 163 in a composite fashion
was considered by the Hon'ble Bombay
High Court in Prashant S. Joshi Vs
Income Tax Officer, Ward 19 (2)(4),
reported at (2010) 324 ITR 154. The
Hon'ble Bombay High Court elucidated
the scope of the provisions as under:

"9. Section 147 provides that if
the Assessing Officer has reason to believe
that any income chargeable to tax has
escaped assessment for any assessment
year, he may subject to the provisions of
Sections 148-163, assess or reassess such
income and also any other income
chargeable to tax, which has escaped
assessment and which comes to his notice
subsequently
in
the
course
of
the
proceedings under the section. The first
proviso to Section 147 has no application
in the facts of this case. The basic
postulate which underlines Section 147 is
the formation of the belief by the Assessing
Officer that any income chargeable to tax
has
escaped
assessment
for
any
assessment year. The Assessing Officer
must have reason to believe that such is
the case before he proceeds to issue a
notice under Section 147. The reasons
which are recorded by the Assessing
Officer for reopening an assessment are
the only reasons which can be considered
when the formation of the belief is
impugned. The recording of reasons
distinguishes
an
objective
from
a
subjective
exercise
of
power.
The
requirement of recording reasons is a
check against arbitrary exercise of power.
For it is on the basis of the reasons
recorded and on those reasons alone that
the validity of the order reopening the
assessment is to be decided. The reasons
recorded while reopening the assessment
cannot be allowed to grow with age and
ingenuity, by devising new grounds in
replies and affidavits not envisaged when
the reasons for reopening an assessment
were recorded. The principle of law,
therefore, is well settled that the question
as to whether there was reason to believe,
within the meaning of Section 147 that
income has escaped assessment, must be
determined with reference to the reasons
recorded by the Assessing Officer. The
reasons which are recorded cannot be
supplemented by affidavits. The imposition
1 All. Mr. Deepak Gupta Vs. Assistant Commissioner Income Tax, Noida & Ors.
1345
of that requirement ensures against an
arbitrary exercise of powers under Section
148."

21. Similarly the Division Bench of
the Hon'ble Bombay High Court in N.D.
Bhatt, IAC Vs I.B.M. World Trading
Corporation reported at (1995) 216 ITR
811, construed the ambit of Section 148
and observed as under:

" It is also well settled that the
reasons for reopening are required to be
recorded by the assessing authority before
issuing any notice under section 148 by
virtue of the provisions of section 148 (2)
at the relevant time. Only the reason so
recorded can be looked at for sustaining
or setting aside a notice issued under
section 148. In the case of Equitable
Investment Co. (P.) Ltd. vs. ITO [1988]
174 ITR 714 a Division Bench of the
Calcutta High Court has held that where a
notice issued under section 148 of the IT
Act, 1961, after obtaining the sanction of
the CIT, is challenged, the only document
to be looked into for determining the
validity of the notice is the report on the
basis of which the sanction of the CIT has
been obtained. The IT Department cannot
rely on any other material apart from the
report."

22. The same principal was reiterated
in another Division Bench judgment of the
Hon'ble
Bombay
High
Court
in
Hindustan Lever Ltd. Vs R.B. Wadkar
reported at (2004) 268 ITR 332.

"...the reasons are required to be
read as they were recorded by the AO. No
substitution or deletion is permissible. No
additions can be made to those reasons.
No inference can be allowed to be drawn
based on reasons not recorded. It is for the
AO to disclose an open his mind through
reasons recorded by him. He has to speak
through
his
reasons.... The
reasons
recorded
should
be
clear
and
unambiguous and should not suffer from
any vagueness. The reasons recorded must
disclose his mind. Reasons are the
manifestation of mind of the AO. The
reasons
recorded
should
be
selfexplanatory and should not keep the
assessee guessing for the reasons. Reasons
provide link between conclusion and
evidence. The reasons recorded must be
based on evidence. The AO, in the event of
challenge to the reasons must be able to
justify the same based on material
available on record.... That vital link is the
safeguard against arbitrary reopening of
the concluded assessment. The reasons
recorded
by
the
AO
cannot
be
supplemented by filing affidavit of making
oral submission, otherwise, the reasons
which are lacking in material particulars
would get supplemented, by the time the
matter reaches to the Court, on the
strength of affidavit or oral submissions
advanced."

23. In the light of the facts found in
the earlier part of the judgment and the
position of law distilled in the immediately
preceding paragraphs, this Court finds that
the satisfaction arrived at by the authority
satisfies all the requirements of law as
contemplated under Section 147 of the I.T.
Act, 1961 and explained by judicial
pronouncements in that regard.

24. The petitioner was granted full
opportunity to state his case before the
authorities in his objections against the
issuance of notice under Section 148 of the
I.T. Act, 1961 for the Assessment Year
2012-13. The petitioner duly availed the
aforesaid remedy. The authorities while
1346 INDIAN LAW REPORTS ALLAHABAD SERIES
deciding the objections of the petitioner
passed detailed speaking orders which
again reflect due application of mind on
the facts and material in the record.

25. The Deputy Commissioner of
Income Tax, Circle-5(1) (1), Gautam
Buddh Nagar while disposing of the
aforesaid objection of the petitioner
against issuance of the notice under
Section 148 in its order dated 26.11.2019
considered the objections of the petitioner.
The objections of the petitioner were dealt
with on a point to point basis. While
passing the order dated 26.11.2019 the
competent Revenue Authority found that
necessary pre-requisite of Section 147 that
"there should be an escapement of
income" stood fulfilled. The reasons
recorded in that regard were found to be
valid. The authority also noticed the
admission of the assessee that he had
"incurred Long Term Capital Gain of Rs.
47,43,264/- during Financial Year 201112, however, the same has not been
disclosed in his ITR."

26. The validity of the refusal of the
request of the petitioner to cross examine
Ashok Kumar Kayan, Sunil Kumar Kayan,
Devesh Kumar Kayan whose statements
were part of the material, was also
affirmed in the following terms;

" In this regard, it is clarified
that the undersigned cannot compel any
other person for such cross examination as
all these persons are not residing within
200
km.
From
the
office
of
the
undersigned. Therefore they cannot be
summoned/called upon for such cross
examination. The Income Tax Act, 1961
does not have any provision which may
empower the undersigned to enforce the
cross examination of a third party by the
assessee. However, the statements of Shri
Ashok Kumar Kayan are being provided to
the assessee for ready reference."

27. No provision was pointed out
during the course of the argument which
could compel us to take a differing view
from that of the authority passing the order
dated 26.11.2019.

28. Before parting, we would like to
deal with another issue in the interest of
justice. We have already found as a matter
of fact that the recital in the order dated
28.10.2019 as well as order dated
26.11.2019 that the due approval under
Section 151 of the I.T. Act, 1961 was
taken from the competent authority is not
liable to be interfered with in light of the
insufficient pleadings. However, the nature
of right of the assessee to be provided a
copy of the order of prior approval under
Section 151 of the I.T. Act, 1961 as
understood by the authority passing the
order dated 28.10.2019 has to be adverted
to. The authority denied a copy of the
approval
granted
by
the
competent
authority under Section 151 of the I.T.
Act, 1961 to the petitioner for the
following reasons:

" However, the AR of the
assessee has contested that the copy of
approval was not provided with the
reasons recorded. In this regard, it is
informed that the approvals taken from
higher authorities are internal matter of
the department for communication hence,
the same cannot be provided. Further, the
assessee has cited case law of Hon'ble
Delhi High Court in support of his claim.
It is hereby clarified that the case law of
Hon'ble Delhi High Court is not binding
on the undersigned. However, if the
assessee has case laws of jurisdictional
1 All. Mr. Deepak Gupta Vs. Assistant Commissioner Income Tax, Noida & Ors.
1347
High Court or Hon'ble Supreme Court, the
same may be communicated accordingly.
Therefore, the above ground of the
assessee is not acceptable hence rejected."

29. The aforesaid finding of the
Revenue authority is unsustainable in law.
Approval under Section 151 of the I.T. Act,
1961, prior to initiation of proceedings under
Section 148 of the I.T. Act, 1961 is a
jurisdictional pre-requisite. In the absence of
such approval the proceedings would fall to
the ground for want of jurisdiction. As such,
the assessee is fully entitled to a copy of the
order passed under section 151 of the I.T.
Act,
1961
and
correspondingly,
the
Assessing Officer is obliged to hand-over a
copy of the same, as and when the assessee
seeks for it.

30. There is no infirmity in the
reassessment proceedings and the same are
not liable to be interfered with.

31. The writ petition is accordingly
disposed of finally.

32. Let a copy of this judgment and
order be transmitted by the Registry to the
Principal Commissioner of Income Tax,
Uttar Pradesh, for circulation.
----------
(2020)1ILR 1346

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.01.2020

BEFORE
THE HON'BLE MANOJ KUMAR GUPTA, J.

Appeal U/S 37 Of Arbitration And Conciliation
Act 1996 No. 2 of 2020

M/s D.H.B. Narendra Construction (J.V.)
 ...Appellant
Versus
Union of India & Ors. ...Respondents

Counsel for the Appellant:
Sri Manoj Kumar Tewari

Counsel for the Respondents:
-----

A. Arbitration and Conciliation Act, 1996 -
Section 37 - challenge to- application u/s
9 of the Act-restraining the Railways from
cancelling the work contract and from
forfeiting security-relief sought is not
granted-no evidence to establish that the
layout and design were not handed over to
the appellant in time-an injunction could
not be granted. (Para 4, 5 & 6)

As a first principle of law, in case of breach of a
contract which could be compensated in terms
of money, the relief for specific performance
could not be granted. Any injunction order
restraining
the
respondents
from
not
terminating the contract, extending the time
limit under which contract was to be executed
and
restraining
the
respondents
from
interfering in the execution of the work by the
appellant, is nothing but an order by the Court
directing specific performance of the contract
and that too on terms varied by it. such an
injunction could not be granted.

Appeal
U/S
37
Of
Arbitration
&
Conciliation Act 1996 dismissed. (E-6)

(Delivered by Hon'ble Manoj Kumar Gupta,J.)

1. The instant appeal under Section
37 of the Arbitration and Conciliation Act
1996 has been filed challenging the order
passed by District Judge, Ballia dated
18.12.2019, in Misc. Case No. 15 of 2019,
rejecting the application filed by the
appellant under Section 9 of the said Act.

2. In brief, the facts giving rise to the
instant appeal are that the appellant was
awarded a work order on 26.12.2018 by
the Railways for construction of platforms,