TMI Blog2014 (7) TMI 346X X X X Extracts X X X X X X X X Extracts X X X X ..... he observed by communication dated 6.11.2006 that such objections would be disposed of at the time of framing the reassessment - CIT(Appeals) for the assessment year 2002-03 on the very issue recorded in the reasons of reopening and concluded in favour of the petitioner assessee on 9.5.2006 - For completion of reassessment u/s 147 in respect of the AY 1999- 2000, the last date was 31.12.2006. The stage of considering the objections and disposing of the same in wake of not only the averments made in the objections raised but also based on surrounding circumstances of facts and law was given a go by completely – revenue was needed to pass a speaking order, which not only is obligatory but that would have saved enormous time and resources as the appellate authority decided the very issue under reopening in favour of the assessee – thus, assessment made pursuant to the proceedings under section 148 set aside - matter remanded back – Decided in favour of assessee. - Special Civil Application No. 24739 of 2006 - - - Dated:- 12-3-2014 - Akil Kureshi And Sonia Gokani,JJ. For the Petitioner : Mrs. Swati Soparkar For the Respondent : Mr. Nitin Mehta JUDGMENT (Per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntioned in para B would be eligible for higher depreciation rate, if any instrumentation system is installed in existing energy flow system and that instrumentation system gives ways and means to save the energy of an existing energy flow system, the equipments mentioned in para B above are eligible for depreciation @ 100%. The para B is different from para E, wherein the terminology used is electrical equipment . Therefore, for example the automatic voltage controller being an electrical equipment, saves the energy, it would be entitled for depreciation @ 100%. Therefore,unless and until meters and capacitors are part of instrumentation system, which is used to save energy in the existing energy flow system, depreciation @100% is not allowable on meters. Secondly, the assessee states that the new electronic meters installed in the premises of the consumer save energy and therefore energy saving device. This view is not acceptable for the reasons mentioned above. In this regard, opinion of an expert Shri Dhiru Pujara, Chartered Engineer also strengthens the view point of the Department. Shri Dhiru Pujara is a Registered Chartered Engineer and Authorized Energy Auditor by the Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 6.11.2006 which is averred to have been received by the petitioner on 20.11.2006 cancelled the receipt of communication dated 13.11.2006, however, it was observed that such objections would be decided at the time of assessment order. 5.3 In response thereto once again a communication was sent to the respondent on 23.11.2006 urging to pass a speaking order on the preliminary objections filed by reiterating the judicial pronouncements made on the issue. The petitioner, thereafter, challenged on 28.11.2006 by way of present petition, the action of the respondent has the objections furnished by the petitioner were not disposed of despite such correspondence. 5.4 By way of ad interim relief the respondent is directed to make any demand of the tax till further order and such order of protection has continued till date. 6. We notice that for and on behalf of the respondent affidavit-in-reply has not been furnished. 7. Learned counsel Mr.B.S.Soparkar appearing for the petitioner has urged that non-supply of the objections is in complete contravention to the decision of the Apex Court and the some of the pronouncements made by this Court thereof. He urged that the reassessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessing officer is bound to furnish reasons within a reasonable time. On receipt of reasons, the noticee is entitled to file objections to issuance of notice and the assessing officer is bound to dispose of the same by passing a speaking order. In the instant case, as the reasons have been disclosed in these proceedings, the assessing officer has to dispose of the objections, if filed, by passing a speaking order, before proceeding with the assessment in respect of the abovesaid five assessment years. 11. The Apex Court in the case of Union of India vs. Kamalakshi Finance Corporation Ltd. reported in AIR 1992 SCC 711 has held that the higher appellate authorities judgment requires to be followed by other authorities. It also referred judgment in the case of Lakshmi Vilas Bank Ltd. vs. Commissioner of Income-Tax reported in [2006] 284 ITR 93 (Mad) where there is reference of the decision of the Apex Court in the case of Commissioner of Income-tax vs. S.S. Ratanchand Bholachand (HUF) reported in [1994] 206 ITR 72. 12. It is to be noted that this Court in the case of Garden Finance Ltd. vs. Assistant Commissioner of Incometax (supra) had interpreted and explained this judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The assessee thus is found entitled to the reasons on which the proceedings of reopening or of reassessment are initiated. No assessee is required to undergo the cumbersome proceedings of process of reopening, unless the assumption of jurisdiction in respect of the same is based on valid legal base. 16. Discussion of judicial pronouncements made hereinabove clearly indicate that the preliminary objections raised against the notice and also in relation to the reasons recorded must be considered and all objections raised by the assessee by speaking order needs to be disposed of. This Court also has directed to provide reasonable time to approach, the High Court to challenge the order of rejection in judicial side. 17. Thus, it can be seen that the Revenue authorities, are duty bound to follow the directions issued by the Apex Court and amplified by this Court in no unclear terms which is not only the mandate under the law to be followed in its letter and spirit but the consistency in judicial matters also would warrant the Revenue authorities to follow such directions. Adherence to such requirement would also eliminate the allegation of arbitrariness in the matter of reopening. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king order dealing with the objections and further providing a period of one month from the dispatch of such speaking order deciding the preliminary objections had not been paid heed to. 21. Be that as it may, we are of the firm opinion that vital stage of considering the objections and disposing of the same in wake of not only the averments made in the objections raised but also based on surrounding circumstances of facts and law was given a go by completely. The respondent was needed to pass a speaking order, which not only is obligatory but that would have saved enormous time and resources as the appellate authority decided the very issue under reopening in favour of the assessee. However, instead of quashing the notice itself, petitioner is relegated to the assessing officer. 22. Resultantly, this petition is allowed. Impugned assessment made pursuant to the proceedings under section 148 of the Act dated 28.9.2005 stands quashed. Consequently, all subsequent proceedings undertaken pursuant to the issuance of impugned assessment order stand quashed and set aside. 23. Respondent is directed to consider the objections raised by the petitioner against the impugned notice o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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