VIVEKANANDA HOSPITAL PVT. LTD.,DURGAPUR vs. ITO, WARD 2(1), DURGAPUR

The assessee is a company and it filed its return for the Assessment Year 2009-10 on 29/09/2009, declaring total Nil income. The Assessing Officer reopened the assessment u/s 147 of the Act, after recording the reasons for reopening and issuing notice u/s 148 of the Act, dt. 30/03/2016 and thereafter on 31/03/2016. He completed the assessment u/s 143(3)/147 of the Act, determining the total income of the assessee at Rs.21,00,000/-. Aggrieved the assessee carried the matter in appeal challenging the validity of the reopening. The ld. CIT(A) dismissed the appeal of the assessee.

Further aggrieved the assessee is in appeal before me.

The ld. Counsel for the assessee, Shri S.M. Surana, submitted that the reopening is bad in law for the following reasons:- a) The notice was issued u/s 148 of the Act, was dt. 30/03/2016 and whereas, in the order sheet entry, it is recorded that the ld. Pr. CIT, Durgapur has granted a statutory approval u/s 151(2) of the Act for issual of notice u/s 148 of the Act on 31/03/2016. Thus, the notice Assessment Year: 2009-10 Vivekananda Hospital Pvt. Ltd. u/s 148 of the Act, u/s 148 of the Act, was issue prior to grant of approval and hence was issue prior to grant of approval and hence bad in law. b) The ld. CIT(A) states that another notice was issued on 31/03/2016, he ld. CIT(A) states that another notice was issued on 31/03/2016, he ld. CIT(A) states that another notice was issued on 31/03/2016, which was served both man which was served both manually as well as through e ually as well as through e-mail and hence, the approval was obtained from the ld. Pr. CIT prior to the hence, the approval was obtained from the ld. Pr. CIT prior to the hence, the approval was obtained from the ld. Pr. CIT prior to the issue of notice. issue of notice. On this finding, the ld. Counsel for the assessee, On this finding, the ld. Counsel for the assessee, submits that unless the notice submits that unless the notice issued on 30/03/2016, reopening the 30/03/2016, reopening the assessment is canc assessment is cancelled or withdrawn, the assessment cannot be elled or withdrawn, the assessment cannot be once again be reopened on 31/03/2016 once again be reopened on 31/03/2016 by issue of one more notice by issue of one more notice u/s 148 of the Act u/s 148 of the Act and hence is bad in law. c) That recording reasons for initiating proceedings u/s 148 of the Act recording reasons for initiating proceedings u/s 148 of the Act recording reasons for initiating proceedings u/s 148 of the Act and for obtaining approval of ld. and for obtaining approval of ld. Pr. CIT, at Sr. No. 13, there is no Pr. CIT, at Sr. No. 13, there is no signature of the ld. Pr. CIT signature of the ld. Pr. CIT, indicating that there is no approval. , indicating that there is no approval. Hence there is Hence there is grant of approval on date, by the ld. Pr. CIT by the ld. Pr. CIT as required u/s 151 of the Act, for reopening of assessment. required u/s 151 of the Act, for reopening of assessment. required u/s 151 of the Act, for reopening of assessment. d) That the assessee was not provided with copy of the reasons That the assessee was not provided with copy of the reasons That the assessee was not provided with copy of the reasons recorded as required by the judgment of the Hon’ble Supreme Court recorded as required by the judgment of the Hon’ble Supreme Court recorded as required by the judgment of the Hon’ble Supreme Court in the case of in the case of GKN Driveshafts (India) Ltd. v. Income GKN Driveshafts (India) Ltd. v. Income-tax Officer [2003] 259 ITR 19 (SC) [2003] 259 ITR 19 (SC), though the specific request was made , though the specific request was made by way of letter dt. 28/04/2016, and hence the assessment was bad in law. of letter dt. 28/04/2016, and hence the assessment was bad in law. of letter dt. 28/04/2016, and hence the assessment was bad in law. e) That the reasons recorded were without any application of mind by That the reasons recorded were without any application of mind by That the reasons recorded were without any application of mind by the Assessing Officer, as the statement of a person who has certified the Assessing Officer, as the statement of a person who has certified the Assessing Officer, as the statement of a person who has certified the accounts of the assessee under the statute, the accounts of the assessee under the statute, contradicted the contradicted the accounts and the correctness of the information and the correctness of the information given in the given in the statement was not verified by the Assessing Officer. was not verified by the Assessing Officer.

The ld. D/R relied on the order of the ld. CIT(A) and submitted that each The ld. D/R relied on the order of the ld. CIT(A) and submitted that each The ld. D/R relied on the order of the ld. CIT(A) and submitted that each and every argument made by the assessee, w and every argument made by the assessee, was rebutted by the ld. CIT(A). O utted by the ld. CIT(A). On a specific question, whether approval of the ld. whether approval of the ld. Pr. CIT for reopening of the for reopening of the assessment as required u/s 151 of the Act was obtained, the ld. D/R, assessment as required u/s 151 of the Act was obtained, the ld. D/R, had no reply. had no reply. The assessment record produced before us does not contain the approval of the ld. The assessment record produced before us does not contain the approval of the ld. The assessment record produced before us does not contain the approval of the ld. Pr. CIT. The certified copy of the assessment record obtained by the assessee takes Pr. CIT. The certified copy of the assessment record obtained by the assessee takes Pr. CIT. The certified copy of the assessment record obtained by the assessee takes Assessment Year: 2009-10 Vivekananda Hospital Pvt. Ltd. us to a conclusion that no approval was obtained. us to a conclusion that no approval was obtained. The ld. Pr. CIT had not s The ld. Pr. CIT had not signed granting approval. Thus, the reopening is bad in law. Thus, the reopening is bad in law.

As we have quashed the reopening on this ground, we do not adjudicate the As we have quashed the reopening on this ground, we do not adjudicate the As we have quashed the reopening on this ground, we do not adjudicate the other issues raised by the ld. Counsel for the assessee as it would be an academic other issues raised by the ld. Counsel for the assessee as it would be an academic other issues raised by the ld. Counsel for the assessee as it would be an academic exercise.

In the result, appeal o In the result, appeal of the assessee is allowed. Kolkata, the Kolkata, the 8th day of January, 2020. Sd/- [J. Sudhakar Reddy] Accountant Member Dated : 08.01.2020 {SC SPS} Copy of the order forwarded to: opy of the order forwarded to:

1. 1. Vivekananda Hospital Pvt. Ltd Vivekananda Hospital Pvt. Ltd Dr. Zakir Hussain Avenue Bidhannagar Durgapur – 713 206 2. Income Tax Officer, Ward-2(1), Kolkata 2(1), Kolkata 3.