TMI Blog2017 (3) TMI 667X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment. Under these circumstances while dealing with the scope and ambit of section 147 r.w.s.148 of the Act, reopening of assessment is bad in law. - Decided in favour of assessee - ITA.No.1577/Hyd/2014 - - - Dated:- 10-3-2017 - SHRI D. MANMOHAN, VICE PRESIDENT For The Assessee : Shri C.P. Ramaswami For The Revenue : Shri A. Sitarama Rao ORDER This appeal by the assessee-company is directed against the order passed by the CIT(A)-V, Hyderabad and it pertains to the A.Y. 2008-2009. 2. As could be noticed from Form No.36 as well as the order of the F.A.O, the CIT(A)-V, Hyderabad passed the order on 13.11.2013 whereas the same was claimed to have been communicated to the assessee on 10.01.2014 but the appeal was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Hon ble Tribunal. Ultimately the appeal was filed on 15.04.2014 which resulted in a delay of 218 days. Since the affidavit was based on certain facts which cannot be crossverified by the Bench, it is the duty of the Revenue to file an appropriate reply. In fact, the Learned Counsel, appearing on behalf of the assessee, contended before us that when the technical issue of delay is pitted against the merits of the case, the merits should prevail and in the instant case, the assessee has a strong case on merits inasmuch as the A.O. has issued a notice under section 148 without even recording reasons and therefore, the re-assessment proceedings deserve to be annulled as void abinitio [320 ITR 561 (SC) ]. 2.2. Since the Revenue h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect of the reasons recorded for re-opening of the assessment u/s 147 of the Act, it is submitted that, except an unsigned copy of the reasons placed on record, no order sheet noting recording the reasons is available on record. However, from the record, it appears that the assessment is re-opened consequent to the directions of CIT-I, Hyderabad dated 05/03/2012, to redress the RAP Objection 2.3. It is well settled that a statement made in an affidavit has to be taken as correct unless some material is filed by other party to counter the statement made therein whereas, in the instant case, no material was furnished; in fact, no counter affidavit or even letter was filed by the A.O. till date though the affidavit was filed on 3rd Decemb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment was completed u/s. 143(3) on 22.12.2010. Therefore, he has no jurisdiction to reopen the assessment unless there are valid reasons. In fact, the A.O. erred in proceeding with the assessment even without furnishing reasons recorded and even before obtaining the assessee s objection against the reopening. Though this ground was urged before the Ld. CIT(A), a non-speaking order was passed in this regard by merely observing as under : 5. The Ground Nos.14 regarding levy of interest u/s.234B is only consequential in nature. Ground Nos.15 16 are general in nature and hence not adjudicated. The Ground Nos.1, 2, 3, 4 and 5 are with regard to validity of reopening of assessment u/s.147 of the Act. 5.1. I have carefully ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon ble Delhi High Court (Full Bench) in the case of Usha International Ltd., 348 ITR 485 wherein the Court observed that even if an assessment was to be reopened within 04 years, it cannot be based on mere change of opinion and particularly when the facts are on record at the time of original assessment any reopening is not valid; in particular the recording of reasons is a must before initiating the proceedings under section 148 of the Act. In the instant case, the A.O. has not applied his mind and issued notice under section 148 merely because of audit objection, without independently verifying as to whether there was reason to believe that income has escaped assessment. 11. I have carefully considered the rival submissions and peruse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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