SMCC CONSTRUCTION INDIA LTD. vs. DY. COMMISSIONER OF INCOME TAX

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W.P.(C)-3440/2007HC Delhi2012:DHC:914231 January 20123 pages
AI SummaryRemanded

What did the High Court hold?

The Delhi High Court disposed of the writ petition and the Revenue's application for early hearing. The Court directed that the petitioner could file additional objections within two weeks. The petitioner was to appear before the Assessing Officer on March 1, 2012, for a personal hearing on the objections to the reopening. Following this, the Assessing Officer was mandated to pass a speaking order, as required by the Supreme Court in GKN Driveshafts (India) Ltd. The order was to be communicated to the petitioner. The petitioner was granted liberty to challenge the order, including the reopening under Sections 147-148, thereafter. In case of an adverse order, the Assessing Officer was to provide at least one month for the petitioner to challenge it, during which the interim order staying the final assessment order would continue. The Court explicitly stated that no opinion was expressed on the merits of the case.

What were the facts?

The petitioner, SMCC Construction India Ltd., filed a writ petition in 2007 challenging the reopening of its assessment. The Revenue, represented by the Dy. Commissioner of Income Tax, failed to file a counter affidavit for several years, leading to the admission of the writ petition and a stay on the passing of final orders. The petitioner had filed objections to the reopening, which had not been disposed of by the Assessing Officer with a speaking order, as mandated by the Supreme Court in GKN Driveshafts (India) Ltd. vs. ITO & Ors. The Revenue filed an application for early hearing of the writ petition.

What were the issues?

1. Whether the Assessing Officer has disposed of the objections filed by the petitioner against the reopening of assessment by passing a speaking order in terms of the Supreme Court's decision in GKN Driveshafts (India) Ltd. vs. ITO & Ors. (2003) 259 ITR 19 (SC)? Assessee's Contention: The petitioner argued that their objections to the reopening had not been disposed of by the Assessing Officer with a speaking order, contrary to the Supreme Court's mandate. Revenue's Contention: The Revenue had not filed a counter affidavit in the writ petition, which was filed in 2007. They filed an application for early hearing.

Which sections of the Income-tax Act were involved?

Section 147,Section 148

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Cited by 7 judgments on BharatTax

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:V 8 $-40 *|NTHEH|GHcoURToFDELH|ATNEWDELHI + W.P.(C) 344012007 SMCC CONSTRUCTION INDIA LTD. ..... PEtitiONCT Through: Mr.S.Nanda Kumar, Advocate with Mr.Achin Goel, Advocate' VETSUS DY. COMMISSIONER OF INCOME TAX ..... Respondent Through: Mr.Sanjeev Sabharwal, Advocate GORAM: HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE R.V.EASWAR ORDER % 3{.01 .2012 CM No. 1359/2012 Revenue has filed this application for early hearing of the writ petition. lrony is that the Revenue has not filed the counter affidavit in this writ petition which was filed in 2007. Due to said lapse and failure to file the counter affidavit, the writ petition was admitted' It is also noticed that the court has stayed passing of final order. Thus assessment proceedings can continue. Learned counsel for the non-applicant/petitioner has rightly 2012:DHC:9142-DB

7 pointed out that the petitioner has filed objections to the reopening but the same have not been disposed of by Assessing Officer by passing a speaking order in terms of the decision of the Supreme Court in GKN Driveshafts (lndia) Ltd. vs. ITO & Ors. (2003) 259 rTR 1e (SC). ln view of the aforesaid facts and decision of the Supreme Court in GKN Driveshafts (lndia) Ltd. we dispose of the present application and the writ petition directing as under:- 1. The petitioner is given liberty to file additional objections within a period of two weeks before the Assessing Officer. 2. The petitioner will appear before the Assessing Officer on 1't March, 2012 at 2:30 p.m. when personal hearing will be . granted to the authorised representative on the objections filed by them to the reopening of assessment and thereafter, the assessing officer will pass a speaking order as required and mandated by the Supreme Court in G.K.N. Driveshaft (lndia) Ltd.,(supra). The order will be communicated to the petitioner/his authorized representative by registered post. 3. lf required and appropriate, the petitioner will be at liberty to thereafter challenge the order including the reopening under 2012:DHC:9142-DB

a NJIV SA lc Section 147-148 of the Act. 4. In case of an adverse order, the Assessing Officer will give at least one month's time to the petitioner to challenge the order passed in terms of the aforesaid decision of the Supreme Court. The interim order directing that no final assessment +il1- order shall be passed, shall continue to remain in operation fior this period. It is clarified that we have not expressed any opinion on the merits of the case of either side. The application and the writ petition are disposed of. No costs. -.t1.--, KHANNA, J t0d lYr'*'4 R.V.EASWAR, J JANUARY 31,2012 mr 2012:DHC:9142-DB

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