9911796707
TMI Blog2015 (6) TMI 641X X X X Extracts X X X X X X X X Extracts X X X X ..... law in as much as reason recorded by the Assessing Officer before issuing notice under section 148 of the Act has not been provided to the appellant before making said order under section 143(3) rws 147 of the Act. 4. The order made under section 250 of the Act by Commissioner of Income Tax (Appeals) confirming order made under section 143 (3) rws 147 of the Act is illegal, bad-in-law, ultra virus and without allowing reasonable opportunity of the hearing, and without appreciating the facts, submission and evidences in their proper perspective and without passing said order within reasonable time after the last date of hearing is liable to be annulled. 5. The learned assessing officer erred in charging interest under section 234A, 2348, 234 C and 2340 of the Act." 3. Since the assessee has raised the issue of validity of reassessment u/s 143(3) r.w.s. 147 of the Income Tax Act, 1961 which goes to the root of the matter, therefore, we first take up ground No. 3 of the assessee's appeal for adjudication. 4. The ld. Counsel for the assessee has submitted that the assessment was reopened by issuing notice u/s 148 of the Act on 26-3-2010. In response to the notice u/s 148 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... identical issue has been considered and decided by the co-ordinate Bench of this Tribunal in assessee's own case for A.Y. 2008-09 vide order dated 25-3-2013 in para 7 to 17 are as under:- "8. There is no dispute to the fact that assessee filed its return of income u/s.139 of the Act on 29.9.2008 declaring total income of Rs. 7,67,171. The said return was processed u/s.143(1) of the Act accepting the income returned. It is observed that there was a survey action u/s.133A of the Act on the assessee's premises and on that basis, the AO issued notice u/s.148 of the Act dt.26.3.2010, which was served on the assessee on 29.3.2010. On perusal of the order of ld CIT(A), we observe that the AO recorded the reasons u/s.148(2) r.w.s 147 of the Act before issuing notice to the assessee u/s.148 of the Act. We observe from page 33 of PB that assessee vide its letter dated 28.4.2010 asked the AO to furnish the reasons recorded for reopening of assessment. The AO vide its letter dated 29.4.2010, copy placed at page 34 of PB asked the assessee to file return of income and in respect of reasons stated as under: "As regards to your request for providing reasons for reopening of assessments, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be held as invalid." 12.1 The Tribunal after considering the decision of Hon'ble apex Court in the case of GKN Driveshafts (India) Ltd (supra) and various other decisions of Hon'ble High Courts and ITAT has held vide paras 16 & 17 as under: "16. Thus in view of the above discussion and in view of the binding precedents, respectfully applying these propositions to the facts of the case and as the Assessing Officer has not furnished the reasons to the assessee before concluding the assessment proceedings, much less within the reasonable period of time as mandated by the Hon'ble Supreme Court we have no other alternative but to hold that the proceedings are null and void. 17. As we have held that the reopening is bad in law for the reason of nonfurnishing of reasons recorded, we do not go into all other arguments raised in this case on the issue of reopening as they would be academic in nature." 13. We observe that the department filed appeal against the said order of the Tribunal before the Hon'ble High Court and Hon'ble High Court vide its order dated 20.7.2011 reported at 340 ITR 66 (Bom) has confirmed the order of the Tribunal and dismissed the appeal of the department o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ACIT (2007) 294 ITR 233 (Mad) (4) CIT vs. Jai Prakash Singh (1996) 219 ITR 737 (SC) (5) ITO vs. Smt Gurinder Kaur (2006) 102 ITD 189 (Del) (6) S Narayanappa & Ors vs. CIT (1967) 63 ITR 219 (SC) 3. The learned counsel for the assessee strongly relied on the judgment of the Hon'ble Bombay High Court in CIT vs. Fomento Resorts and Hotels Ltd. in Tax Appeal No.71 of 2006 dated 27.11.2006 (copy filed), in which it was held that giving of reasons must be considered as implicit in section 11 of the Expenditure Tax Act, 1987 and if it is not done and the rules of natural justice are violated, the assessment must be quashed, My attention was also drawn to the order of the Tribunal in the aforesaid case in ETA No: 1 & 5/PN/2001 dated 04.04.2006. It was also submitted that the judgment of the Hon'ble Bombay High Court (Panaji Bench) has been confirmed by the Supreme Court by dismissing the Special Leave Petition filed by the CIT by order dated 16.07.2007. The copy of the order of the Supreme Court has also been filed. The judgment of the Hon'ble Bombay High Court (supra) was sought to be distinguished by the learned Senior DR by submitting that it was rendered under a different enactment wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re Tax Act without recording reasons is invalid. Section 148(2) of the Income Tax Act only makes it explicit what was already implicit in the section. The judgment of the Hon'ble Bombay High Court has become final, the Supreme Court having dismissed the Special Leave Petition filed by the Department against the same. In addition to the above, a Division Bench of the Tribunal in Mumbai has held in its order dated 30.10.2009 in ITA No: 7626/Mum/2004 in the case of Videsh Sanchar Nigam Ltd. vs. JCIT, that if the Assessing Officer has not furnished the reasons for reopening the assessment under section 148, the entire proceedings are null and void. In coming to this conclusion the Tribunal has referred to the judgment of the Panaji Bench of the Bombay High Court in CIT vs. Fomento Resorts and Hotels Ltd. (supra) in paragraph 14.9 of its order. In this order the Tribunal has also referred to the order of the Delhi Bench of the Tribunal in the case of ITO vs. Smt Gurinder Kaur (supra) cited by the learned Senior DR before me and has pointed out that the order of the Delhi Bench of the Tribunal is not in consonance with the view taken by the Delhi High Court in the case of New Bank of Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd Member and in accordance with the majority view, held that assessment order passed by the AO is illegal and void ab nitio. Therefore, the assessment was quashed. 17. In the case before us, as mentioned hereinabove, we observe that assessee vide its letter dated 28.4.2010 made a specific request to the AO to furnish reasons recorded for reopening of assessment. We observe that AO vide his letter dated 29.4.2010 asked the assessee to furnish return of income and thereafter reasons for reopening of assessment will be communicated to the assessee. We observe that the AO did not furnish the copy of the reasons recorded till completion of assessment made on 30.12.2010. We observe that assessee also took a ground before ld CIT(A) disputing the validity of assessment order on the ground of non-furnishing of reasons recorded by the AO, but ld CIT(A) in the impugned order stated the reasons recorded by the AO. He has not disputed the fact that no copy of the reasons recorded were furnished to the assessee, which is necessary before the assessment is completed. We hold that in view of the decision of the Tribunal in the case of Telco Dadajee Dhackjee Limited (supra) and the decisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
