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2022 (5) TMI 528 - GUJARAT HIGH COURTReopening of assessment u/s 147 - Scope of new regime of Section 148A - Conducting inquiry, providing opportunity before issue of notice under section 148 - Non consideration of objection against reopening - AO wants to reopen the assessment for the relevant year 2018-19 is that the writ applicant – assessee had not shown the transactions with respect to the Social Cooperative Bank Limited - HELD THAT:-Nothing of what was pointed by the writ applicant – assessee in his objections could be said to have been taken into consideration by the Assessing Officer in its true sense. When the assessee offers his reply by way of objections, then there is a staturoy obligation on the part of the Assessing Officer to consider the objections and deal with those in accordance with the true spirit and intent of the provisions of Section 148A The plain reading of clause (d) of Section 148A referred to above would indicate that the Assessing Officer is obliged in law to decide on the basis of the materials available on record including the reply of the assessee, whether or not it is a fit case to issue a notice under Section 148 by passing an order with the prior approval of the specified authority within one month from the end of the month in which the reply is received by him. Thus, there is an obligation cast upon the Assessing Officer in accordance with clause (d) of Section 148A of the Act, 1961 to consider the case not only on the basis of the materials available on record, but also the reply of the assessee. If the reply of the assessee has not been considered, then passing of the order under clause (d) of Section 148A could be said to be an empty formality. The new regime of Section 148A should be strictly followed so as to make it meaningful. The principle of law, as explained by the Supreme Court, in the case of GKN Driveshaft (India) Ltd [2002 (11) TMI 7 - SUPREME COURT], is now a statutory provision in the form of new Section 148A of the Act. We are of the view that we should quash and set aside the order passed under clause (d) of Section 148A as well as the notice issued under Section 148 of the Act, 1961 and remit the matter to the Assessing Officer for fresh consideration of the objections filed by the writ applicant. This writ application succeeds in part. The impugned order dated 7th April 2022 passed by the Assessing Officer and the notice issued under Section 148 of the Act, 1961 are hereby quashed and set aside. The matter is remitted to the Assessing Officer for fresh consideration of all the objections raised by the writ applicant. This time the Assessing Officer shall apply his mind and pass an appropriate order under clause (d) of Section 148A dealing with all the objections in its true sense.
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