It is settled law that the Assessing Officer performs a quasi-judicial function while framing an assessment. And further the Revenue cannot dictate the manner in which the Assessing Officer frames the assessment order.
The Supreme Court in [2009] 314 ITR 81 (SC) held thatthe Commissioner, or for that matter, any other higher authority, may have supervisory jurisdiction over the Assessing Officer but it is difficult to conceive that even the merits of the decision should be discussed and should be rendered by the higher authority, who is a supervisory authority. It is one thing to say that while making the orders of assessment the Assessing Officer should be bound by the statutory circulars issued by the CBDT but it is -another thing to say that the assessing authority exercising quasi-judicial functions, keeping in view the scheme contained in the Act, would lose his independence to pass an independent order of assessment. When a statute provides for different hierarchies providing for forums in relation to passing of an order as also appellate or revisional order, by no stretch of imagination can a higher authority interfere with the independence which is the basic feature of any statutory scheme involving adjudicatory process.
Section 148 in its avatar provide for reopening a case based on certified information and further subject to conduct of a prior enquiry with respect to such information u/s148A.
Section 148A call upon the assessing officer to initiate enquiry with respect to information after taking prior approval from supervisory authority being the Commissioner or Chief Commissioner , as defined in section 151.
Now further upon such approval the assessing officer is duty bound to conduct a quasi judicious enquiry and thereupon pass an order on merits as per clause (d) in section 148A reading :
“d) decide, on the basis of material available on record including reply of the assessee, whether or not it is a fit case to issue a notice under section 148, by passing an order, with the prior approval of specified authority, within one month from the end of the month in which the reply referred to in clause (c) is received by him, or where no such reply is furnished, within one month from the end of the month in which time or extended time allowed to furnish a reply as per clause (b) expires:”
Thus, apparently he is required to have a prior approval too even before passing an order on merits which is kind of raising a clear doubt on the propriety and independence of the assessing authority in the matter of exercise of rightful scrutiny under the scheme of law. Section 148A clause (d) therefore will require a test of constitutionality at some point in time.