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2022 (12) TMI 77 - AT - Income TaxReopening of assessment u/s 147 - reason to believe - sustainability of the assessment framed by the A.O without making available a copy of the “reasons to believe” to the assessee who after duly complying with the notice u/s 148 of the Act is stated to have specifically requested for the same - HELD THAT:- As it transpires that not only the assessee had in unequivocal terms brought to the notice of the CIT(A) that he had after complying with the notice u/s.148 requested the AO for a copy of the “reasons to believe” that formed the very basis for reopening of its case u/s.147 but in fact had relied on a plethora of judicial pronouncements wherein various Courts had held that framing of an assessment by the A.O without providing to the assessee a copy of the “reasons to believe” would render the assessment order as bad in law. Admittedly, though the assessee had categorically assailed before the CIT(Appeals) the validity of the assessment order passed by the A.O u/s.147/143(3) on the ground that the same having been framed de-hors making available a copy of the “reasons to believe” forming the very basis for reopening of the case of the assessee could not be sustained for want of valid assumption of jurisdiction, however, we find that the same had not been disposed off by the CIT(Appeals). Considering all the matter requires to be revisited by the CIT(Appeals), who shall in the course of the set-aside proceedings deal with the claim of the assessee qua the validity of the order passed by the A.O u/s.147/143(3) of the Act without making available a copy of the “reasons to believe” on the basis of which proceeding u/s.147 of the Act were initiated in the case of the assessee, specifically when a request for the same was made by the assessee after complying with the notice u/s.148. Thus principally concur with the position of law canvassed by him qua the validity of the assessment order passed by the A.O u/ss.147/143(3), without making available to the assessee a copy of the “reasons to believe” that had formed the very basis for reopening of its case u/s.147. Thus the failure on the part of the A.O to make available to the assessee a copy of the “reasons to believe”, which forms the very basis for reopening of his case goes to the root of the validity of jurisdiction that was assumed by him for framing the assessment. For the reason that when an assessee despite a specific request for a copy of the “reasons to believe” is not provided with the same by the A.O, then, he remains divested of his statutory right of objecting to the very basis on which proceedings u/s.147 of the Act were initiated in his case. In a case where there is a complete violation of the applicable principle of law by the A.O, who despite a specific request by the assessee had failed to communicate to him the “reasons to believe” that had formed the very basis for reopening of his assessment u/s.147 of the Act, then, the very assumption of jurisdiction by him and framing of the impugned assessment cannot be sustained and is liable to be struck down on the said count itself. The aforesaid view is supported by the judgment in the case of Agarwal Metals and Alloys [2012 (8) TMI 612 - BOMBAY HIGH COURT]. Thus restore the matter to the file of the CIT(Appeals) for the limited purpose of verifying the veracity of the assessee’s claim that despite his specific request no copy of the “reasons to believe” were made available to him by the A.O, and in case the same is found to be in order, then, pass an order in terms of aforesaid observations. Appeal of the assessee is allowed for statistical purposes.
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