MRS. ASHA JAIN,NEW DELHI vs. ACIT, NEW DELHI

ORDER

PER AMIT SHUKLA, JUDICIAL MEMBER:

1.That the order passed u/s. 147/143(3) of the I.T. Act, 1961 is bad on facts and in law and requires to be annulled.

2. That the Ld.CIT (A) failed to appreciate that the provisions of section 148 of the I.T. Act, 1961 do not apply to the facts of the Page 1 of 10 case and that the Assessing Officer has wrongly assumed jurisdiction without satisfying the primary requirement of reasons to believe that the income has escaped assessment.

3. That the Assessing Officer having considered the bank account of the appellant maintained with Vaish Co-Operative Adarsh Bank Limited (A/c. No. 999) in the block assessment proceedings and having passed a speaking order without making any addition cannot, in law, resort to the provisions of section 148 for assessing the same in the regular assessment proceedings.

4. That the Ld. CIT(A) grossly erred on facts and in law in sustaining the addition of Rs.6,07,500/- for the present assessment being unexplained deposits in the bank account.

5. That in sustaining the addition, the Ld. CIT(A) has not appreciated the co-gent arguments made by the appellant in support of its contention and relied on irrelevant consideration in sustaining the addition of Rs. 6,07,500/- made by the Assessing Officer. The order is vitiated in law and requires to be annulled.

6. The appellant craves leave to add, amend or alter any ground/s of appeal either before or at the time of hearing of the appeal."

2. Before us, the ld. counsel Shri P.C. Yadav, submitted that the impugned proceedings is second round of proceedings passed in pursuance of Tribunal’s order dated 23.7.2010 in /2015, wherein the Tribunal has remanded back the matter to the file of AO to pass fresh assessment order disposing of assessee’s objection on the validity of reopening u/s 147. He pointed out that in the case of the assessee, regular return of income for the A.Y. 1999- 2000was filed on 7.7.1999 declaring income of Rs. 1,23,850/-. Thereafter, the assessee’s case was reopened u/s 147 by issuance of notice u/s 148 dated 31.3.2004. Against the said reopening, the assessee had filed detailed objections for reopening the assessment u/s 147 vide letter dated 27.12.2004 and again vide letter 18.1.2005. In the said objections, assessee had specifically brought to the notice of AO that the law laid down by the Hon’ble Supreme Court in the case of G.K.N. Driveshafts (India) Ltd. v. ITO (2003) 259 ITR 19 (SC) makes it mandatory on the part of the Assessing Officer to dispose off the objections regarding reopening of the assessment by way of speaking order before proceeding with the reassessment proceedings. However the ld. Assessing Officer neither disposed of the assessee’s objection nor dealt with the issue of validity of reopening in the original assessment order. In this background the Hon’ble Tribunal set aside the matter to the file of the Assessing Officer after observing and holding as under:- “We remit the matter back to the file of the AO for passing specific order against these objection raised by the assessee against the validity of re-assessment proceedings.The AO should pass necessary order as per law in this regard after provided adequate opportunity of being head to the assessee. Regarding the merit of additions made by the AO, we feel that the same should also be decided by the AO afresh after providing adequate opportunity of being head to the assessee because it was the objection of the LD. AR. of the assessee before us that adequate opportunity was not provided by the AO and-since the matter is going back to the file of the AO for a fresh decision on the legal issue regarding validity or re-assessment proceedings, the factual aspect should also be decided by him afresh it he Page 3 of 10

finds that the assessee does not have any case on legal issue. We direct the AO accordingly. He should pass necessary order as per law on merit also as per above discussion after provided adequate opportunity of being heard to the assessee.”

Now despite categorical direction by the Hon’ble Tribunal the Assessing Officer has again failed to dispose off the assessee’s objection and has reiterated the same addition which was made in the original assessment order. The Learned CIT(Appeals) too has failed to take this note of this fact.

5. We have heard the rival submissions and perused the relevant material placed on record. It is an undisputed fact that the assessee after receiving notice u/s 148 has raised objections before the Ld. Assessing Officer challenging the validity of reopening of the assessment u/s 147/148, vide letter dated 27.12.2014 and again on 18.1.2005. In the said objections the assessee had requested the Assessing Officer to dispose of the objections as per the law laid down by the Hon'ble Supreme Court in the case of G.K.N. Driveshafts (India) Ltd. v. ITO (supra). However the AO did not comply with the mandatory requirement of the law, before proceeding with determining the tax liability. Thereafter, when the matter was set aside by this Tribunal to the file of the Assessing Officer with specific direction to dispose off the assessee’s objections filed during the course of original assessment proceedings, even then the Assessing Officer has failed to carry out such direction of the Tribunal and also to abide by the mandatory requirement of law of disposing off assessee’s objection. The Ld. DR had strongly contented that, since assessee did not responded to any of the notices by the AO, therefore, AO is justified in his approach. Such a contention cannot be upheld, because even if the assessee had not complied with notices in the set aside proceedings, however the Assessing Officer was legally bound to dispose off the objections which was filed earlier in response to notice u/s 148 and was there on assessment records before him as per the directions of the Tribunal. Such non-compliance of direction of Tribunal and also Page 5 of 10 noncompliance of the law laid down by the Hon’ble Apex Court, only leads to vitiating of the entire reassessment proceedings. It is well settled law that the reopening of the assessment u/s 147 and issuance and service of notice u/s 148 is a jurisdictional matter and whenever such a jurisdiction is challenged, then it is incumbent upon the Assessing Officer to pass an order either rejecting the assessee’s objection or drop the proceedings in case he agrees with such an objections. This is a clear mandate of the law laid down by the Hon’ble Apex Court which has been well explained by Hon’ble Jurisdictional High Court in the case of Pr.CIT vs. Tupperware India (P) Ltd. (supra),wherein their Lordships have observed and held as under:- “5. Apparently, the Assessee did raise an objection to the order of the AO reopening the assessment. In the order dated 28th January 2011 allowing the Assessee's appeal, the Commissioner of Income Tax (Appeals) ['CIT (A)'] noted that the Assessee had indeed filed objections to the reopening of the assessment by its letter dated 9th August 2006. In the 'remand report dated 20th December 2010, the AO quoted a paragraph from the order sheet which stated that the aforementioned letter dated 9th August 2006 had been handed over to :ne AO and that the AO had sought some more information which the Assessee had not filed. The CIT (A) accordingly held that by stating that no objections had been filed, the AO had very conveniently disregarded the guidelines" laid down by the Supreme Court in G.K.N. Driveshafts (India) Ltd. v. ITO (2003) 259 ITR 19 (SC). The CIT (A), therefore, agreed with the Assessee that since the procedure laid down by the SC in the Page 6 of 10 aforementioned decision was mandatory, the AO had in fact not disposed of the objections by a speaking order. Nevertheless, the CIT (A) held that the said defect "does not make the assessment order illegal and hence it cannot be quashed. It is a technical mistake which is curable."

Further this Tribunal in the case of Suresh Chandra (supra) following various decisions of the High Court, had quashed the reassessment proceedings, wherein the Assessing Officer has failed to dispose of the assessee’s objections. The relevant observation in order of the Tribunal are reproduced here under:- “Having gone through the above cited decisions regarding the mannerin which the Assessing Officer is to dispose of the objections raised against the jurisdiction of the Assessing Officer for issuance of notice under sec. 148of the Act, we find that the ratios laid down in this regard by the Hon'ble Supreme Court in the case of G.K.N. Drive Shaft (India) Ltd. vs. ITO (supra) along with other decisions have been discussed by the Hon'ble Gujarat High Court in the case of General Motors India (P) Ltd. vs. DCIT (supra) and the Hon'ble High Court after detailed deliberation has come to the following conclusions:

“23. From the aforesaid decision, we are of the considered opinion that writ petition under Article 226 of the Constitution of India is maintainable where no order has been passed by the Assessing Officer deciding objection filed by the assessee under sec. 148 of the Act and assessment order has been passed or the order deciding an objection under sec. 148 of the Act has not been communicated to the assessee and assessment order has been passed or the objection filed under sec. 148 has been decided along with the assessment order. If the objectionunder sec. 148 has been rejected without there being any tangible material available with the Assessing Officer to form an opinion that there is escapement of income from assessment and in absence of reasons having direct link with the formation of the belief, the writ petition filed by the petitioner is maintainable. The Assessing Officer is mandated to decide the objection to the notice under sec. 148 and supply or communicate it to the assessee. The assessee gets an opportunity to challenge the order in a writ petition. Thereafter the Assessing Officer may pass the reassessment order. We hold that it was not open to the Assessing Officer to decide the objection to noticeunder sec. 148 by a composite assessment order. The Assessing Officer was required to, first decide the objection of the assessee filed under sec. 148 and serve a copy of the order on assessee. And after giving some reasonable time to the assessee for challenging his order, it was open to him to pass an assessment order. This was not done by the Assessing Officer, therefore, the order on the objection to the notice under sec. 148 and the assessment order passed under the Act deserves to be quashed.”

In view of the above decisions, we find that the Assessing Officer is mandated to decide the objection to the notice under sec. 148 of the Act and supply or communicate it to the assessee. Thereafter, the assessee gets an opportunity to challenge the order in a writ petition. Thereafter, the Assessing Officer may pass the reassessment order. It is not open to the Assessing Officer to decide the objection raised against notice under sec. 148 by a composite assessment order. Thus, the Assessing Officer was required to first decide the objection of the assessee filed under sec. 148 and serve a copy of the order on assessee. And after giving some reasonable time to the assessee for challenging his order, it is open to him to pass an assessment order. Since such compliance has not been made by the Assessing Officer in the present case, we hold the impugned assessment order dated 03.10.2008 as not valid and the same is held as void ab initio”

Order pronounced in the open courton 19.04.2017.