TMI Blog2016 (5) TMI 581X X X X Extracts X X X X X X X X Extracts X X X X ..... recorded in the ‘Reasons’, do not warrant reopening, before the assessment proceedings are commenced. The AO can dispose all these objections, and if satisfied with the objections, the impugned reopening notice issued u/s 148 of the Act can be withdrawn; otherwise it can be proceeded with further. In issues, such as this, where jurisdictional issue is involved, the same must be strictly complied with by the authority concerned. Thus we hold that reopening of this case, in the given facts and circumstances of the case, is invalid - Decide in favour of assessee. - ITA NO.5926/Mum/2009 - - - Dated:- 28-10-2015 - Shri Saktijit Dey, Judicial Member, and Shri Ashwani Taneja, Accountant Member For The Assessee : Dr. K. Shivaram Miss Nilam Jadhav (AR) For The Revenue : Shri Vachaspati Tripathi (DR) ORDER Per Ashwani Taneja (Accountant Member): This appeal has been filed by the assessee against the order of Ld. Commissioner of Income Tax (Appeals)-II, Mumbai {(in short Ld. CIT(A)} dated 24.08.2009 for the assessment year 2001-02, decided against the assessment order passed by the Assessing Officer (in short AO ) u/s 143(3) r.w.s. 147 of the Act. The assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds, it was found by the Hon ble Bench that there was no copy of Reasons , in the assessment records. Accordingly, an interim order was passed by the Hon ble Bench, directing the Revenue to file a suitable affidavit in support of its claim, if so desired. Thereafter, in pursuance to the directions of the Hon ble Bench, an affidavit was filed by the AO on behalf of the Revenue, along with few other documents, as part of departmental paper book, wherein certain facts were deposed on oath. In response to the same, subsequently, a counter affidavit was filed by the assessee, pointing out various contradictions, fallacies and inconsistencies in the affidavit of the AO as well as other records placed on record by the department, before the Hon ble Bench. It was argued by the Ld. Counsel that after long drawn exercise and exchange of affidavit, counter affidavit and other documents, now the final facts have emerged on the surface. Now, the admitted case of the department is that Reasons are not available in the assessment records and that no copy of Reasons was furnished to the assessee during the course of impugned reassessment proceedings. It was argued by the Ld. Counsel that in view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee, or even communicating the same to the assessee, in any manner. It has been submitted that notice was issued to the assessee u/s 143(2). In response to which, the then counsel of the assessee attended before the AO and at that time the then Ld. Counsel of the assessee was informed by the AO to file submissions on some of the issues as were raised by the AO, by way of order sheet entries, for the first time. It was finally argued that the assessee has repeatedly requested for the copy of the Reasons during the course of assessment proceedings and if these would have been recorded by the Ld. AO, then, these would have definitely been provided to the assessee, and therefore, it is now well established that neither any Reasons were recorded nor the same were recorded to the assessee, at any time. Therefore, reopening being contrary to law, the same should be held as invalid and impugned reassessment order should be quashed. 3.4. We have gone through the submissions made and also the material placed before us by both the sides in the form of paper books. We find that in this case, on earlier occasions, long drawn exercise has been done to thrash out the facts properly. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. That I took over the charge of DCIT-2(2), Mumbai, on 08.06.2012. 2. In the charge handing over note, my predecessor had mentioned the following A case file of Muller Phips India Ltd A Y 2001-02 is handed over to you which should be kept in personal custody. Further a computer file containing reasons for reopening is saved in the computer of Room no. 545 of ACIT 2(2). For protecting the same, the computer should be secured with a password. 3. That the reasons recorded by the A.O. for reopening the assessment are not available in physical form on record. 4. That a soft copy of the reasons recorded for reopening the assessment in the case of M/s. Muller Phipps (India) Ltd. for A.Y. 2001-02 exists in the computer kept in the office of the DC1T-2(2), Mumbai, at R.No. 545 of Aayakar Bhavan, bearing file name 'Muller Phipps (I) Ltd-2001-02.doc'. A printout of the file containing reasons recorded for reopening the assessment in this case dated 17.02.2006 is annexed to this affidavit as Exhibit-A. 5. That the properties of the said computer file bearing filename 'Muller Phipps (I) Ltd-2001-02.doc' indicate that it was last modified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he of f icer in regards to the content of his af f idavi t. 8. I further deny the content of para 5 and put the of f icer to strict proof thereof . 9. I further say that the above mentioned attachment of the computer screen shot of the ITO's computer screen. It shows the following file properties. File created 30.09.2011 File modified 17.02.2006 File accessed 28.6.2013 10. As per the affidavit submitted by Officer it states that the file was last modif ied on 17.02.2006 whereas from the above information which shows that the original file as created on 30.09.2011 How can the file which is created on 30.09.2011 be modified on 17.02.2006 ? In any of the file generation methods, the date of file creation will always come first followed by the last updated or the modified date. Thus, there seems to be apparent discrepancy showing the file creation date as 30.09.2011 while modification of the file is made on 17.2.2006. Thus it is possible that the file is created in 2011. i.e. much later than the date of recording the reasons of reopening i.e. 17.2.2006. At this juncture it may be brought to your Honours notice that the first order pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , when the charge is handed over to the succeeding off icer. Accordingly, the said case was mentioned in the Handing Over Note. Remarks have been given for several other ongoing matters, as can be seen from the Handing Over Note. Para 6: The reasons for reopening are not available in physical form now does not mean that they were not placed in the file at any point of time. Para7: The computer file may be verified by a computer expert. The assessee may cross examine. Para 8: The same may be verif ied from a computer expert, if the Hon'ble bench so desires. Para 9: No comments are required. Para 10: There is no discrepancy. An elementary knowledge of computers is required to understand this point. The date of file creation refers to the date it is created in that particular memory location. This creation may be by means of copy-paste from another location. The date of last modification refers to the last modification done in any of the contents of the file. Thus, in a case where a file is created on a particular memory location at a certain time and date, and subsequently it is copied in another location, the time and date of creation in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the position of law is clear. It has been held by Hon ble Supreme Court in the case of GKN Driveshaft 259 ITR 19, that it is mandatory on the part of the AO to provide the copy of the reasons to the assessee and to meet the objections filed by the assessee thereto, if any, before the AO can frame the reassessment order. It is further noted that Hon ble Bombay High Court in the case of CIT v. Videsh Sanchar Nigam Ltd. (supra) has held that in case reasons are not furnished by the AO to the assessee, before completion of reassessment proceedings, reassessment order cannot be upheld. It is further noted that SLP filed by the Revenue against the order of Hon ble Bombay High court, has been rejected by Hon ble Supreme Court. Similar view has been taken by Hon le Mumbai bench of ITAT in the case of Tata International Ltd. vs DCIT, supra and also in few other judgments as have been relied upon by Ld. Counsel before us. We further derive support of our view from a latest judgment of Hon ble Bombay High Court in the case of CIT vs. Trend Electronic in ITA No.1867/2013 order dated 16th September 2015. In this case, Hon ble Jurisdictional High Court, following its earlier decision in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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