BANASKANTHA DISTRICT CO-OP. MILK PRODUCERS UNION LTD vs. ASSISTANT COMMISSIONER OF INCOME TAX
What did the High Court hold?
The High Court held that the impugned reassessment order could not be sustained. The Court noted that the AO disposed of the petitioner's objections on March 19, 2015, and then immediately passed the reassessment order on March 20, 2015, without giving the petitioner reasonable time to challenge the notice under Section 148 and the order disposing of the objections. Furthermore, the order rejecting the objections was served on the petitioner only on March 30, 2015, along with the reassessment order dated March 20, 2015. This action deprived the petitioner of its right to challenge the notice under Section 148 after the disposal of objections. Consequently, the reassessment order was quashed and set aside. The matter was remitted to the AO to pass an appropriate order in accordance with law and on merits, after giving sufficient opportunity to the petitioner and granting reasonable time to challenge the notice under Section 148 post-disposal of objections. The Court clarified that it had not expressed any opinion on the merits of the reassessment proceedings or the substantive issues.
What were the facts?
The petitioner, Banaskantha District Co-op. Milk Producers Union Ltd., filed its return of income for Assessment Year (AY) 2009-10, declaring a total income of Rs. 4,87,41,035. The Assessing Officer (AO) completed the assessment under Section 143(3) on December 19, 2011, making additions, including under Section 14A. The Commissioner (Appeals) deleted the Section 14A addition on December 19, 2013. Subsequently, the AO issued a notice under Section 148 on March 19, 2014, to reopen the assessment for AY 2009-10. The petitioner requested the reasons for reopening, but they were provided only on January 5, 2015. The petitioner filed objections on January 12, 2015, which were rejected by the AO on March 13, 2015. The AO then passed the reassessment order on March 20, 2015, without giving the petitioner further opportunity. The order rejecting objections was served on the petitioner simultaneously with the reassessment order.
What were the issues?
1. Whether the reassessment order dated March 20, 2015, passed under Section 143(3) read with Section 147 of the Income Tax Act for AY 2009-10 is illegal and in breach of principles of natural justice due to the delay in providing reasons for reopening and the manner in which objections were disposed of and the reassessment order was passed? Assessee's arguments: - The AO failed to provide the reasons for reopening within a reasonable time, contrary to the Supreme Court's decision in GKN Driveshafts (India) Ltd. vs. Income-Tax Officers and Ors. - The AO disposed of the petitioner's objections on March 19, 2015, and passed the reassessment order on March 20, 2015, without granting any further opportunity, violating principles of natural justice. - Even the communication rejecting objections was served on the petitioner simultaneously with the reassessment order. - The notice under Section 148 and the initiation of reassessment proceedings are illegal and invalid, possibly based on a change of opinion. - The reassessment proceedings for the issue of deduction under Section 80P(2)(d) could not have been reopened as the issue had merged with the CIT(A)'s order. Revenue's arguments: - The judgment does not record any specific arguments made by the revenue.
Which sections of the Income-tax Act were involved?
Section 14A,Section 142(1),Section 143(3),Section 147,Section 148,Section 80P(2)(d)
AI-generated summary — verify with the full judgment below
Cause title — parties, addresses and appearances
ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH)
Rule. Shri Nitin Mehta, learned advocate waives service of notice of Rule on behalf of the respondent. In the facts and circumstances of the case and with the consent of the learned advocates for the respective parties, matter is taken up for final hearing today. 2. 0. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for an appropriate writ, direction and order to quash and set aside the impugned notice under Section 148 of the Act dated 19th March 2014 issued by the respondent for AY 200910. 2. 1. The petitioner assesseee has also prayed for an appropriate writ, direction and order quashing and setting aside the impugned order passed by the respondent herein dated 13th March 2015 rejecting the objections to assumption of juri iction under Section 148 of the Act for AY 200910. The petitioner has also further prayed for an appropriate writ, direction and order to quash and set aside the assessment order dated 23.03.2015 passed under Section 143(3) r/w Section 147 of the Income Tax Act (hereinafter referred to as the “Act”) for AY 200910.
The facts leading to the present petition in nutshell are as under:
That the petitioner filed return of income for AY 200910 declaring total income of Rs.4,87,41,035/. That the case was taken under scrutiny. The AO issued a notice under Section 142(1) of the Act calling for various details. That thereafter, AO finalized the assumption and passed the assessment order under Section 143(3) of the Act on 19.12.2011. It appears that while finalizing the assessment, the AO made addition under Section 14 A of the Act inter alia other additions.
That feeling aggrieved and dissatisfied with the order of assessment for AY 200910, the petitioner preferred appeal before the CIT(A) and by order dated 19.12.2013, learned CIT(A) deleted the addition under Section 14 A of the Act made by the AO. 3. 3. That thereafter, within a period of four years, the AO had issued notice under Section 148 of the Act on 19.3.2014 to reopen the assessment for AY 200910. By the said notice, the petitioner was called upon to file its return of income for the AY under consideration. That immediately on receipt of the notice under Section 148 of the Act, the petitioner vide communications dated 10.04.2014 and 16.04.2014 requested to furnish the reasons recorded for reopening of the assessment. However, till January 2015 the AO did not furnish reasons recorded for reopening of the assessment. That only on 5.1.2015 the petitioner was served with the copy of the reasons recorded for reopening of the assessment dated 9.2.2014. That immediately on receipt of the reasons recorded for reopening of the assessment, the petitioner filed detailed objections for reopening, vide objection dated 12.1.2015. That by order dated 13.3.2015, the AO disposed of the said objections raised by the petitioner and overruled the same. That immediately, the respondent has passed the impugned reassessment order on 20.03.2015 without giving any further opportunity to the petitioner. At this stage, it is required to be noted that even the communication / order dated 13.3.2015 disposing of the objection raised by the petitioner came to be served upon the petitioner only on 20.3.2015 i.e. simultaneously along with reassessment order i.e. on 13.3.2015. 3. 4. Hence, feeling aggrieved and dissatisfied with the impugned notice under Section 148 of the Act, the communication dated 13.3.2015 disposing the objection raised by the petitioner and the reassessment order dated 20.3.2015 which has been served upon the petitioner on 30.3.2015, the petitioner has preferred present Special Civil Application under Article 226 of the Constitution of India for the aforesaid reliefs. 4. 0. Shri Tej Shah, learned advocate for the petitioner has vehemently submitted that impugned reassessment order is absolutely illegal, most perverse and in breach of principles of natural justice.
It is submitted that though the notice under Section 148 of the Act, came to be issued on 19.03.2014 and the petitioner immediately asked for the reasons recorded to reopen the assessment immediately vide communications / letters dated 10.04.2014 and 16.04.2014, till January 2015, the petitioner assessee was not served with the reasons recorded. It is submitted that as per the decision of the Hon'ble Supreme illegal and invalid. It is further submitted that even the reassessment proceedings and / or reopening of the assessment is purely on change of opinion of the AO, which is not permissible.
It is further submitted that even otherwise the assessment with respect to issue of deduction under Section 80P(2)(d) of the Act could not have been reopened by the AO as the said issue has now been merged with the order of CIT(A). It is submitted that therefore, the assumption of the juri iction for reopening of the assessment for the year under consideration is absolutely illegal and even contrary to Section 147 of the Act. Making above submissions and relying upon the decision of the Hon'ble Supreme Court in the case of GKN Driveshafts (India) Ltd (supra) and the decision of the Full Bench of this Court in the case of the Hon'ble Supreme Court as well as this Court are required to be referred to.
In the case of GKN Driveshafts (India) Ltd (supra), the Hon'ble Supreme Court has laid down an elaborate procedure as to the manner of dealing with objections raised against a notice under Section 148 of the Act in the following words: ...However, we clarify that when a notice under section 148 of the Incometax Act is issued, the proper course of action for the notice is to file a return and if he so desires, to seek reasons for issuing notices. The Assessing Officer is bound to furnish reasons within a reasonable time. On receipt of reasons, the notice is entitled to file objections to issuance of notice and the Assessing Officer is bound to dispose of the same by passing a speaking order. In the instance case, as the reasons have been disclosed in these proceedings, the Assessing Officer has to dispose of the objections, if filed, by passing a speaking order, before proceeding with the assessment in respect of the abovesaid five assessment years.”
In a subsequent decision in the case of Garden Finance Ltd. v. Asstt. CIT reported in (2004) 268 ITR 48 (Guj.) (FB), the effect of Supreme Court decision in the case of G.K.N. Driveshaft (India) Ltd. (Supra) came up for consideration and by a majority opinion it has been thus laid down by this Court as under: “What the Supreme Court has now done in the G.K.N. Case (2003)259 ITR 19 is not to whittle down the principle laid down by the Constitution Bench of the Apex Court in Calcutta Discount Co. Ltd. case (1961) 41 ITR 191 but to require the assessee first to lodge preliminary objection before the Assessing Officer who is bound to decide the preliminary objections to issuance of the reassessment notice by passing a speaking order and, therefore, if such order on the preliminary objections is still against the assessee, the assessee will get an opportunity to challenge the same by filing a writ petition so that he does not have to wait till completion of the reassessment proceedings which would have entailed the liability to pay tax and interest on reassessment and also to go through the gamut of appeal, the second appeal before Incometax Appellate Tribunal and then reference / tax appeal to the High Court. Viewed in this light, it appears to me that the rigour of availing of the alternative remedy before the Assessing Officer for objecting to the re assessment notice under section 148 has been considerably softened by the Apex Court in G.K.N. case (2003) 259 ITR 19 in the year 2003. In my view, therefore, the G.K.N. case (2003) 259 ITR 19 (SC) does not run counter to the Calcutta Discount Co. Ltd. case (1961) 41 ITR 191 (SC) but it merely provides for challenge to the reassessment notice in two stages, that is, i) raising preliminary objections before the Assessing Officer and in case of failure before the Assessing Officer, ii) challenging the speaking order of the Assessing Officer under section 148 of the Act (p.87).”
Thereafter, in the case of Arvind Mills Ltd. (Supra), the Division Bench of this Court had an opportunity to consider the aforesaid two decisions and after considering both the aforesaid decisions, in para 9 the Division Bench has observed and held as under:
“9. The position in law is thus well settled. After a notice for re assessment has been issued an assessee is required to file the return and seek reasons for issuance of such notice. The Assessing Officer is then bound to supply the reasons within a reasonable time. On receipt of reasons, the assessee is entitled to file preliminary objections to issuance of notice and the Assessing Officer is under a mandate to dispose of such preliminary objections by passing a speaking order, before proceeding with the assessment in respect of the assessment year for which such notice has been issued.”
In the case of Sahakari Khand Udyog Mandal Ltd (supra) the Division Bench had an occasion to consider the various different stages from the date of notice under Section 148 of the Act to the reassessment order and ultimately after considering the decision of the Hon'ble Supreme Court in the case of GKN Driveshafts (India) Ltd (supra), in para 14 had issued the following directions; “1. Once the Assessing Officer serves to an assessee a notice of reopening of assessment under section 148 of the Income Tax Act, 1961, and within the time permitted in such notice, the assessee files his return of income in response to such notice, the Assessing Officer shall supply the reasons recorded by him for issuing such notice within 30 days of the filing of the return by the assessee without waiting for the assessee to demand such reasons.
Once the assessee receives such reasons, he would be expected to raise his objections, if he so desires, within 60 days of receipt of such reasons.
If objections are received by the Assessing Officer from the assessee within the time permitted hereinabove, the Assessing Officer would dispose of the objections, as far as possible, within four months of date of receipt of the objections filed by the assessee.
This is being done in order to ensure that sufficient time is available with the Assessing Officer to frame the assessment after carrying out proper scrutiny. The requirement and the timeframe for supplying the reasons without being demanded by the assessee would be applicable only if the assessee files his return of income within the period permitted in the notice for reopening. Likewise the time frame for the Assessing Officer to dispose of the objections would apply only if the assessee raises objections within the time provided hereinabove. This, however, would not mean that if in either case, the assessee misses the time limit, the procedure provided by the Supreme Court in the case of GKN Driveshafts (India) Ltd (supra) would not apply. It only means that the time frame provided hereinabove would not apply in such cases.
In the communication supplying the reasons recorded by the Assessing Officer, he shall intimate to the assessee that he is expected to raise the objections within 60 days of receipt of the reasons and shall reproduce the directions contained in subpara 1 to 4 hereinabove giving reference to this judgment of the High Court. 6.The Chief Commissioner of Income Tax and Cadre Controlling Authority of the Gujarat State, shall issue a circular to all the Assessing Officers for scrupulously carrying out the directions contained in this judgment.”
In view of the aforesaid decisions of the Hon'ble Supreme Court as well as this Court and the law laid down by the Hon'ble Supreme Court, impugned reassessment order cannot be sustained.
It is required to be noted that Full Bench of this Court in the case of Garden Finance Ltd. (Supra) also had an occasion to consider the the decision of the Hon'ble Supreme Court in the case of Calcutta Discount Co. Ltd reported in (1961) 41 ITR 191 and decision of the Hon'ble Supreme Court in the case of G.K.N. Driveshaft (India) Ltd. (Supra) does not run counter to the decision of the Hon'ble Supreme Court in the case of Calcutta Discount Co. Ltd (1961) 41 ITR 191 (SC) but it merely provides for challenge to the reassessment notice in two stages i.e. ...... (i) raising preliminary objections before the Assessing Officer and in case of failure before the Assessing Officer,(ii)challenging the speaking order of the Assessing Officer under section 148 of the Act.
In the present case, thus the AO has disposed of the objections only on 19.03.2015. Thereafter some reasonable time was required to be given to the assessee to challenge the notice under Section 148 of the Act and the order disposing of the objections. Instead immediately on 20.03.2015, the AO passed reassessment order without giving any further opportunity to the petitionerassessee and even the order / communication disposing of the objection dated 19.3.2015 came to be served upon the petitioner assessee only on 30.03.2015 along with assessment order dated 20.03.2015. Thus, right of the petitioner to challenge the notice under Section 148 of the Act, subsequent to the disposing of the objections has been taken away by the AO. Under the circumstances, impugned reassessment order cannot be sustained and matter is to be remitted to the file of the AO reserving liberty in favour of petitioner to challenge the notice under Section 148 of the Act at post disposing of the objection and if within reasonable time the petitioner fails to get any order, the AO to pass appropriate reassessment order in accordance with law and after giving fullest opportunity to the petitioner assessee.
In view of the above and for the reasons stated above, the impugned order of assessment dated 20.03.2015 under Section 143(3) r/w Section 147 of the Act for AY 200708 is hereby quashed and set aside on the aforesaid ground alone. The matter is remitted to the file of the AO to pass an appropriate order in accordance with law and on merits and after giving sufficient and fullest opportunity to the petitioner assessee, however granting reasonable time to the petitioner to challenge the notices under Section 148 of the Act after the order disposing of the objection. It is observed that if within reasonable time, the assessee does not get any order in the proceedings challenging the notice under Section 148 of the Act only thereafter the AO to pass appropriate assessment order in accordance with law and on merits, however after giving the reasonable opportunity to the petitioner. It is made clear that this Court has not expressed anything on merits either with respect to initiation of reassessment proceedings and / or even on merits. Rule is made absolute to the aforesaid extent. No costs. (M.R.SHAH, J.) (S.H.VORA, J.) Kaushik
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