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Suresh Chandra Versus Income-tax Officer, New Delhi

2015 (7) TMI 399 - ITAT DELHI

Validity of reopening of assessment - Held that:- Assessing Officer is mandated to decide the objection to the notice under sec. 148 of the Act and supply or communicate it to the assessee. Thereafter, the assessee gets an opportunity to challenge the order in a writ petition. Thereafter, the Assessing Officer may pass the reassessment order. It is not open to the Assessing Officer to decide the objection raised against notice under sec. 148 by a composite assessment order. Thus, the Assessing O .....

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2 (11) TMI 7 - SUPREME Court] - Decided in favour of assessee. - ITA No. 3061 /Del/2012 - Dated:- 13-3-2015 - SHRI I.C. SUDHIR AND SHRI B.C. MEENA, JJ. For The Appellant : Shri PC Yadav, Adv. For The Respondent : Shri BRR Kumar, Sr.DR ORDER PER I.C. SUDHIR: JUDICIAL MEMBER The assessee has questioned first appellate order on the following grounds: 1. That the Learned CIT(Appeals)-XXVIII has erred on facts and in law in upholding the re-opening of assessment for assessment year 1997-98 by invokin .....

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w facts were the reason for reopening the case, which was earlier, not disclosed by the assessee. As the assessment has been wrongly reopened by invoking the provisions of sec. 147 as the assessee has disclosed all the relevant facts in the original return filed by him and mere change of opinion of the Assessing Officer cannot be the basis for re-opening of assessments. 3. That the Learned CIT(Appeals)-XXVIII erred on facts and in law and was not justified in upholding that the amount of ₹ .....

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ain fails to furnish the reasons of notice u/s. 148 before proceeding with assessment and the Learned CIT(Appeals)- XXVIII has erred on facts and in law in upholding the same. 6. That the impugned order is bad in law as it is based upon irrelevant considerations. The order of the Learned CIT(Appeals)- XXVIII are not based upon the facts of the case but on assumptions and surmises. 7. That the impugned order is illegal, bad in law and in violation of the contemporary principles of natural justice .....

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lable on record and the decisions relied upon. 5. In support of the ground Nos. 4 and 5, the Learned AR submitted that in the first round of the appeal, the I.T.A.T vide its order dated 27.7.2007 in ITA No.476/Del/2006 has set aside the matter to the file of the Assessing Officer with the direction to dispose of the objections raised by the assessee to the jurisdiction of the Assessing Officer for issuance of notice under sec. 148 of the Act first by passing a speaking order in view of the decis .....

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r the disposal of the objection passing a separate order. He submitted that in the above cited decision of the Hon'ble Supreme Court in the case of G.K.N. Drive Shaft (India) Ltd. vs. ITO (supra), the ratios laid down is that the Assessing Officer ought to have disposed of the objection raised by the assessee to the jurisdiction of the Assessing Officer for issuance of notice under sec. 148 of the Act by passing a separate order and proceed for reassessment only after giving an opportunity t .....

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Ltd. vs. DCIT - 353 ITR 244 (Guj.); M/s. Bharuch Envoir -ITA Nos. 731 & 732/Ahmedabad/2007 (A.Ys. 2000-01 and 2001-02) vide order dated 05.08.2014. 6. The Learned AR on the other hand submitted that the Assessing Officer has fully complied with the direction of the ITAT while disposing of the objection raised by the assessee to the jurisdiction of the Assessing Officer for issuance of notice under sec. 148 of the Act. The Learned CIT(Appeals) was thus justified in upholding the same. He rei .....

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scussed by the Hon'ble Gujarat High Court in the case of General Motors India (P) Ltd. vs. DCIT (supra) and the Hon'ble High Court after detailed deliberation has come to the following conclusions: 23. From the aforesaid decision, we are of the considered opinion that writ petition under Article 226 of the Constitution of India is maintainable where no order has been passed by the Assessing Officer deciding objection filed by the assessee under sec. 148 of the Act and assessment order ha .....

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tion of the belief, the writ petition filed by the petitioner is maintainable. The Assessing Officer is mandated to decide the objection to the notice under sec. 148 and supply or communicate it to the assessee. The assessee gets an opportunity to challenge the order in a writ petition. Thereafter the Assessing Officer may pass the reassessment order. We hold that it was not open to the Assessing Officer to decide the objection to notice under sec. 148 by a composite assessment order. The Assess .....

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