SRI BIKRAMJIT PAUL,UTTAR DINAJPUR vs. DCIT, CIR-II, JALPAIGURI, JALPAIGURI

The undisputed fact in this appeal is that the assessee has not received the copy of the reasons recorded for reopening the assessment, despite request for the same from the Assessing Officer. The issue raised is whether such non-furnishing of the reasons for reopening, after the ./2016 Assessment year: 2010-2011 Page 2 of 3 specific request for the same is made by the assessee to the Assessing Officer, vitiates the reopening of assessment.

In the case of CIT v. Videsh Sanchar Nigam Ltd. (2012) 340 ITR 66 (Bom.) the Tribunal following the judgment of Bombay High Court in CIT v. Fomento Resorts and Hotels Ltd. of 2006 dated 27th November, 2006, has held that though the reopening of assessment was within three years from the end of relevant assessment year, since the reasons recorded for reopening of the assessment were not furnished to the assessee till date the completion of assessment, the reassessment order cannot be upheld, moreover, Special Leave Petition filed by revenue against the decision of this court in the case of CIT v. Fomento Resorts and Hotels Ltd., has been dismissed by Apex Court, vide order dated July 16,2007. The Mumbai ITAT followed the above decision and quashed the reassessment proceedings in the following cases: • Tata International Ltd. v. Dy. CIT (2012) 52 SOT 465 (Mum.) • Telco Dadajee Dhakjee Ltd. v. DClT (Mum.) (TM) - itatonline.org • Muller & Phi lips (India) Ltd. v. ITO (Mum.}(Trib.); www.itatonline.org • Jeevanlal Jain ITA No. 910/M/2014 dt 13-1-2016, Bench J; (Mum.) (Trib.).

The ld. D.R. relied on the decision of the Delhi ‘A’ Bench of the Tribunal in the case of ITO, Ward-11(6), New Delhi –vs.- Smt. Gurinder Kaur [2006] 102 ITD 189 (Delhi) and argued that where the assessee was aware of reasons for reopening the assessment, non-communication of reasons would not be fatal to the validity of reassessment proceedings. The proposition laid down in this case does not apply to the facts of the case on hand for the reasons that, it cannot be said that the assessee in this case was aware of the reasons for reopening of assessment. In any event, I am bound to follow the judgment of the Hon’ble Bombay High Court in preference to the judgment of Division Bench of Delhi Tribunal.

In view of the above discussion, as the reasons for reopening of assessment have not been furnished by the assessee despite request for ./2016 Assessment year: 2010-2011 Page 3 of 3 the same, the assessment order passed under section 148 read with section 143(3) is quashed as illegal.

In the result, the appeal of the assessee is allowed. Order pronounced in the open Court on 1st March, 2017.