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Income Tax Appellate Tribunal, “F” BENCH, MUMBAI
Before: SHRI SAKTIJIT DEY & SHRI MANOJ KUMAR AGGARWAL
Date of Hearing – 16.05.2019 Date of Order – 22.05.2019
2 M/s. Firstsource Solutions Ltd. O R D E R PER BENCH
Aforesaid appeals by the Revenue and cross objections by the assessee arise out of two separate orders, both dated 29th March 2016, passed by the learned Commissioner of Income Tax (Appeals)– 12, Mumbai, pertaining to the assessment years 2007–08 and 2008– 09.
& 3986/Mum./2016 Revenue’s Appeals for A.Y. 2008–09 & 2007–08
The only effective common ground raised by the Revenue in both the appeals reads as under:–
“On the facts and in the circumstances of the case and in law, the learned Commissioner (Appeals) erred in quashing the re– assessment proceedings on the ground that the Assessing Officer had, neither during the re–assessment proceedings nor at the time of passing the assessment order properly rejected the assessee’s objection to such re–opening inasmuch as he ought to have restored the matter to the Assessing Officer with a direction to follow the procedure laid down by the Hon'ble Supreme Court in the case of GKN Driveshafts, in consolance with the recedents in the cases of MGM Exports v/s DCIT, [2010] 23 DRT 356 (Guj.) and Sak Industries Pvt. Ltd. in Writ Petition © 7933/2010 of the Delhi High Court.”
Brief facts are, the assessee company is engaged in the business of providing Information Technology Enabled Services (ITES). For the impugned assessment year, the assessee filed its return of income in the regular course. Initially, the assessments in case of the assessee
3 M/s. Firstsource Solutions Ltd. for the impugned assessment years were completed under section 143(3) of the Income Tax Act, 1961 (for short "the Act"). Subsequently, on verifying the records, the Assessing Officer having found that the loan raised by the assessee through foreign currency convertible bonds (FCCB) were utilized to subscribe to the shares of a wholly owned subsidiary in USA and the said subsidiary used those funds for re–payment of its debts, the Assessing Officer was of the view that expenditure claimed for issuance of FCCBs by the assessee was not allowable. Accordingly, he re–opened the assessment for both the assessment years under appeal under section 147 of the Act. In the course of assessment proceedings, the assessee after obtaining the reasons for re–opening of assessment raised objections against the proceedings initiated under section 147 of the Act. As it appears, without considering / disposing of the objections of the assessee independently, the Assessing Officer proceeded to complete the assessments under section 143(3) r/w section 147 of the Act by disallowing the bond issue expenditures in both the assessment years. The assessee challenged the assessment orders so passed by filing appeals before the first appellate authority.
Before learned Commissioner (Appeals), the assessee while challenging the validity of the re–assessment order passed contended that without disposing of the objections raised by the assessee against
4 M/s. Firstsource Solutions Ltd. the re–opening of the assessment under section 147 of the Act, the Assessing Officer could not have passed the assessment orders. Learned Commissioner (Appeals) after considering the submissions of the assessee and on verifying the facts on record found that, though, in the course of assessment proceedings the assessee had raised objections challenging the initiation of proceedings under section 147 of the Act, however, the Assessing Officer neither during the assessment proceedings passed a speaking order rejecting the assessee’s objection nor he has done so in the assessment order. Therefore, he held that the assessment orders passed without disposing off assessee’s objections are legally unsustainable. Of– course, she further observed, since the original assessments were completed under section 143(3) of the Act, the Assessing Officer could not have re–opened the assessments under section 147 of the Act when there is no allegation by him that the alleged escapement of income was due to failure on the part of the assessee to disclose fully and truly all relevant material necessary for making assessment. Accordingly, she quashed the assessment orders passed by the Assessing Officer in both the assessment years under appeal.
The learned Departmental Representative relying upon the grounds raised submitted that non–disposal of the objections raised by the assessee is a procedural irregularity committed by the Assessing
5 M/s. Firstsource Solutions Ltd. Officer. Therefore, learned Commissioner (Appeals) should have restored the issue to the Assessing Officer for passing fresh assessment orders after disposing of the objections of the assessee. Thus, he submitted, learned Commissioner (Appeals) was not justified in quashing the assessment orders.
Shri Farookh Irani, learned Sr. Counsel for the assessee strongly supporting the decision of learned Commissioner (Appeals) submitted, non–disposal of the objections raised by the assessee by the Assessing Officer before completion of the assessment is not a mere procedural irregularity but affects the jurisdiction of the Assessing Officer to pass the assessment orders. Therefore, he submitted, such defect in the assessment orders is not a curable one which can be rectified by restoring it again to the Assessing Officer. In support of such contention, learned Sr. Counsel for the assessee relied upon the following decisions:–
i) GKN Driveshrafts India Ltd. v/s ITO & Ors., [2003] 259 ITR 019 (SC); ii) KSS Petron Pvt. Ltd. v/s ACIT, dated 03.10.3026; iii) TML Drive Lines Ltd. v/s DCIT, ITA no.5256/Mum./2015, dated 31.01.2018; and iv) DCIT v/s National Bank for Agricultural and Research Development, ITA no.4964/Mum./2014, dated 28.10.2016 6 M/s. Firstsource Solutions Ltd.
We have considered rival submissions and perused the material on record. Undisputed factual position, as culled out from the material on record, clearly reveals that in the course of re–assessment proceedings, though, the assessee had raised objections challenging the validity of re–opening of assessments under section 147 of the Act, however, the Assessing Officer has not disposed of the objections independently by way of separate orders before completion of assessment proceedings under section 143(3) r/w 147 of the Act. The Hon'ble Supreme Court in GKN Driveshafts India Ltd. (supra) has held that before completion of the assessment, the Assessing Officer is duty bound to dispose of the objections of the assessee separately. Therefore, the Assessing Officer in the instant appeal has not followed the due judicial process while dealing with the objections of the assessee. For that reason, the impugned assessment orders are legally unsustainable. Now the issue which arises is, whether in such circumstances, the re–assessment orders passed have to be quashed as void ab initio or they are to be restored back to the Assessing Officer for enabling him to dispose of the objections of the assessee and pass fresh assessment orders. In our view, the issue is no more res integra in view of the decision of the Hon'ble Jurisdictional High Court in KSS Petron Pvt. Ltd. (supra), wherein, the Hon'ble Jurisdictional High Court has held that if the re–assessment order is passed without disposing of the objections raised by the assessee,
7 M/s. Firstsource Solutions Ltd. they have to be quashed and no second opportunity can be given to the Assessing Officer to pass fresh assessment orders after disposing of the objections of the assessee. The same view has been expressed by the Co–ordinate Bench in the decisions cited by the learned Sr. Counsel for the assessee. Upon careful reading of the decision of the Hon'ble Supreme Court in Larsen Toubro Ltd. v/s State of Jharkhand & Ors., in Civil Appeal no.5390/2007, cited by learned Departmental Representative, we find it to be not applicable to the facts of the present case, as the said decision is not on the issue of validity of re– assessment order on account of non–disposal of objection raised by the assessee. It is relevant to observe, post conclusion of hearing of the appeal, the learned Departmental Representative has submitted a note citing certain decisions in support of the proposition that non– disposal of objection is a procedural irregularity, hence, the assessment order should be set aside for enabling the Assessing Officer to dispose of the objections and pass a fresh assessment order. The first decision relied upon by the learned Departmental Representative is, Home Finders Housing Ltd. v/s ITO, [2018] 94 taxmann.com 84 (SC). This is a matter arising out of a judgment delivered by the Hon’ble Madras High Court holding that non–disposal of objection before completion of assessment is a procedural irregularity which can be cured by setting aside the assessment order to the Assessing Officer for disposing of assessee’s objection and 8 M/s. Firstsource Solutions Ltd. thereafter completing the assessment. Against the aforesaid decision of the Hon’ble Madras High Court, the assessee filed a Special Leave Petition (SLP) before the Hon'ble Supreme Court. The Hon'ble Supreme Court in the decision cited supra, dismissed the SLP in limine without laying down any ratio. The order passed by the Hon’ble Supreme Court is as under:-
“The Special Leave Petition is dismissed. Pending application stands disposed of.’’
It is a fairly well settled legal position that dismissal of SLP in limine at the stage of admission without a speaking or reasoned order does not constitute a binding precedent under Article–141 of the Constitution of India. This principle has been well propounded in case of Kunhayammed Vs. State of Kerala 2001(129) ELT 11 (S.C.). Aforesaid view was again affirmed by the hon’ble Supreme Court in case of Khoday Distilleries Ltd. Vs. Shree Mahadeshwara Sahakara Sakkare Karkhane Ltd. while disposing of Civil Appeal no.2432 of 2019 in judgment dated. 01.03.2019. Therefore, it cannot be said that in the aforesaid decision, the Hon'ble Supreme Court has laid down the proposition that non–disposal of objections against the validity of proceedings initiated under section 147 of the Act is a procedural irregularity which can be cured if the Assessing Officer is given an opportunity to dispose of the objections of the assessee and thereafter
9 M/s. Firstsource Solutions Ltd. complete the assessment. Moreover, the decision of the Hon'ble Supreme Court in GKN Driveshafts India Ltd. (supra) has not been overruled and still holds the field. The next decision cited by the learned Departmental Representative is of the Hon'ble Jurisdictional High Court in NTUC Income Insurance Co–operative Ltd. v/s DDIT, [2013] 33 taxmann.com 255 (Bom.). On a careful reading of the aforesaid decision, it is evident that the facts on the basis of which the Hon'ble Jurisdictional High Court restored back the issue to the Assessing Officer to re–frame assessment de novo is completely different from the present appeal. In the case before the Hon'ble Jurisdictional High Court, the Assessing Officer had not only communicated the reasons for reopening, but, by a separate communication had intimated the assessee that all conditions laid down in GKN Driveshafts India Ltd. has been met. Admittedly, the assessee did not challenge the aforesaid decision of Assessing Officer. Subsequently, the reassessment order was subjected to the proceedings under section 263 of the Act. In of revision proceeding the assessee contended that due to lack of opportunity various documents/evidences could not be produced before the Assessing Officer. Considering the aforesaid submission of the assessee, the Commissioner set aside the assessment order with a direction to frame de novo assessment. During the fresh assessment proceeding assessee pleaded that the objection against reopening of assessment
10 M/s. Firstsource Solutions Ltd. should be disposed of first. In the aforesaid factual context, the Hon'ble Jurisdictional High Court did not entertain assessee’s plea. However, the Hon'ble Jurisdictional High Court in KSS Petron Pvt. Ltd. (supra), in no uncertain terms, has held that if the Assessing Officer before completion of assessment has not disposed of the objection, the assessment order cannot be restored back to the Assessing Officer for framing assessment de novo after disposal of the objections of the assessee. Though, the Hon'ble Madras High Court in case of Home Finders Housing Ltd. referred to earlier as well as the Hon'ble Gujarat High Court in MGM Exports v/s DCIT, [2010] 323 ITR 33 (Guj.) and PCIT v/s Sagar Developers, [2016] 72 taxmann.com 321 (Guj.) have held contrary view, however, we are bound by the decision of the Hon'ble Jurisdictional High Court in KSS Petron Pvt. Ltd. (supra).
In view of the aforesaid, we do not find any infirmity in the orders passed by learned Commissioner (Appeals) in holding the assessment orders passed to be legally unsustainable. Accordingly, grounds raised in both the appeals are dismissed.
In the result, Revenue’s appeals are dismissed. C.O. no.31 & 32/Mum./2017 (Arising out of Revenue’s Appeals in & 3986/Mum./2016)
In the cross objections filed by the assessee, the grounds raised are on merits. Suffice to say, learned Commissioner (Appeals) while
11 M/s. Firstsource Solutions Ltd. deciding the legal issue relating to the validity of the assessment orders passed under section 143(3) r/w 147 of the Act allowed assessee’s grounds. Hence, she did not decide the grounds raised on merits. Since, we have upheld the decision of learned Commissioner (Appeals) in holding that re–assessment orders to be void due to non– disposal of the objections, there is no need to adjudicate the issue raised in the cross objections, as they are of mere academic importance. However, the issues raised in these grounds are left open for adjudication if they arise in future. Accordingly, grounds raised in the cross objections are dismissed.
In the result, assessee’s cross objections are also dismissed.
To sum up, Revenue’s appeals and assessee’s cross objections are dismissed. Order pronounced in the open Court on 22.05.2019