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M/s. Ujagar Holdings Pvt. Ltd. Versus Income Tax Officer, Ward-27 (2) , New Delhi

2016 (7) TMI 949 - ITAT DELHI

Validity of reopening of assessment - reasons to believe non supplied - Held that:- It is settled law that the Assessing Officer is duty-bound to supply the reasons recorded in the reasonable time period as held by the Hon’ble Supreme Court in the case of GKN Driveshaft (India) limited Vs. CIT (2002 (11) TMI 7 - SUPREME Court ). - We find from the submission of the assessee that despite repeated letters requesting to provide copy of the reasons recorded or the grounds on which the assessmen .....

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essment proceedings in almost every submission made before the Assessing Officer. Thus non providing reasons for reassessment within a reasonable time the reassessment completed by the Assessing Officer under section 147 of the Act cannot be sustained in the case of the assessee and quashed - Decided in favour of assessee - ITA No. 2205/Del/2015 - Dated:- 16-5-2016 - Smt. Diva Singh, Judicial Member And Sh. O. P. Kant, Accountant Member For the Appellant : Salil Kapoor & Sanat Kapoor, Adv. & .....

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w the CIT(A) failed to appreciate that AO has not provided the Reasons to believe : a) that income has escaped assessment; and b) that income has escaped assessment by reasons of omission or failure on the part of assessee to disclose fully and truly material facts, therefore, re-opening of the assessment u/s 147 is illegal, unjust and void ab initio at the very threshold. 3. That in view of facts and circumstances of the case and in law, the CIT(A) failed to consider that AO merely substituted .....

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assed by AO is arbitrary, without application of mind and in gross violation of principles of natural justice. 6. The CIT(A) has grossly erred on facts and in law in upholding the assessment order assessing the income at ₹ 20,01,190/- . The additions made by the AO and upheld by the CIT(A) are illegal, unjust and bad in law. 7. That in view of facts and circumstances of the case and in law, the C1T(A) & AO failed to appreciate that assessee has discharged the primary onus by providing .....

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onus cast upon revenue after discharge of primary onus by the assessee. 10. That in view of facts and circumstances of the case and in law, the CIT(A) failed to appreciate that assessee was not provided with any recorded statements of parties named in the order for cross examination and confrontation. 11. That in view of the facts and circumstances of the case and in law , the various observations made by the AO and CIT(A) are factually incorrect , illegal , bad in law and contrary to facts on r .....

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the right to add, amend, alter the ground of appeal. 2. The facts in brief are that the assessee company filed return of income on 30/06/2006 declaring income of ₹ 1,190/-, which was processed under section 143(1) of the Act on 23/06/2007. Subsequently, on receipt of information from the Investigation Wing, that the assessee obtained accommodation entry, after recording reasons to believe that income has escaped assessment, the Assessing Officer (AO) issued notice under section 148 dated 2 .....

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assessee, which was in violation of principle of natural justice. The assessee also challenged the addition made on merit. The assessee submitted before the learned Commissioner of Income-tax(Appeals) that the AO had not provided the reasons to believe for reopening the assessment and therefore the action under section 148 of the Act was not justified. The learned Commissioner of Income-tax(Appeals), however referring to the judgment of the Hon ble Delhi High Court in the case of Rajat Import- .....

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pplicant M/s Karishma Industries Ltd. was not established by the assessee, therefore, he sustained the addition of ₹ 20 lakh in the hands of the assessee. Aggrieved, the assessee is in appeal before us. 3. In ground No. 1 and 2 the assessee has raised the issue that the reasons to believe were not provided to the assessee by the AO and therefore reopening under section 147 is illegal, unjust and void-ab-initio at the very threshold. 4. The Ld. Authorized Representative (AR) of the assessee .....

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ncome Tax Vs. Vijay Sanchar Nigam Ltd. reported in (2012) 21 taxmann.com 53 (Bombay), judgment of the Hon ble High Court of Karnataka dated 14/08/2015 in the case of Kothari Metals vs. ITO in Writ Appeal No. 218/2015, decision of the Tribunal Mumbai bench in the case of Tata International Ltd. Vs. Deputy Commissioner of Income Tax reported in (2012) 23 taxmann.com 18 (Mum) and judgment of Hon ble High Court of Bombay in the case of Commissioner of Income Tax Vs. Trend Electronics reported in (20 .....

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eme Court in the case of GKN Driveshaft (India) limited Vs. CIT (2003) 259 ITR 19 (SC). In the case of Commissioner of Income Tax Vs. Videsh Sanchar Nigam Ltd (supra) the Hon ble High Court of Bombay has held as under: 2. The finding of fact recorded by the Tribunal is that in the present case the reasons recorded for reopening of the assessment though repeatedly asked by the assessee were furnished only after completion of the assessment. The Tribunal following the judgment of this Court in the .....

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CIT vs. Fomento Resorts & Hotels Ltd. (supra) has been dismissed by the apex Court, vide order dt. 16th July, 2007. 3. In this view of the matter, the present appeal is also dismissed with no order as to costs 7. Similarly, in the case of M/s. Kothari Metals Vs. ITO (supra) the Hon ble High Court of Karnataka expressed opinion that proceedings for reassessment could not have been taken for non-furnishing of the reasons of reopening of assessment. The relevant paragraph of the said judgment i .....

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endently. Since such reasons had not been furnished to the appellant, even though a request for the same had been made, we are of the opinion that proceedings for the re-assessment could not have been taken further on this ground alone. 8. In the case of Tata International Ltd. Vs. Deputy Commissioner of Income Tax(supra), the Tribunal after considering the decision in the case of GKN Driveshaft (India) Limited (supra) and Videsh Sanchar Nigam Ltd (supra) held that when the Assessing Officer fai .....

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ly the same within reasonable time as held by the Hon'ble Supreme Court in case of GKN Driveshafts (India) Ltd (supra). The subsequent supply of the reasons would not make good of the illegality suffered by the reopening of assessment. A similar view has been taken by this Tribunal in case of Fomento Resorts & Hotels Ltd vs JCIT and decided a similar issue in para 7 as under: "7 We have considered the submissions made by both the sides, perused the orders of the authorities below an .....

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ssessee in this regard. As far as the issuance of notice u/s 11 is concerned, the preliminary condition of not filing of return is satisfied. Therefore, in such a situation, notice can be issued, provided the same is not barred by limitation. However, after issue of notice, if the assessee asks for furnishing of reasons for issuance of such notice, the Assessing Officer is bound to furnish such reasons. The adherence to this procedure is a necessity because at the preliminary stage itself, if th .....

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Tribunal was upheld by the Hon'ble jurisdictional High Court as mentioned in the decision in the case of Videsh Sanchar Nigam Ltd (Supra). Even the SLP filed by the revenue against the decision of Hon'ble jurisdictional High Court has also been dismissed by the Hon'ble Supreme Court vide order dated 16 July 2007. Thus, it is settled proposition as laid down by the Hon'ble Supreme Court as well as Hon'ble High Court that the reasons as recorded by the Assessing Officer are re .....

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d by the Hon'ble Supreme Court in case of GKN Driveshafts (India) Ltd (supra). Thus, the Assessing Officer has failed to furnish the reasons recorded for reopening of the assessment within the reasonable time and rather prior to the completion of assessment, than the reassessment order passed without supply of reasons as recorded for reopening of the assessment, is invalid and cannot sustain. Accordingly, we set aside the reassessments for all 3 years under consideration being invalid. 9. In .....

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