TMI Blog2017 (7) TMI 911X X X X Extracts X X X X X X X X Extracts X X X X ..... SHRI C.N. PRASAD, JUDICIAL MEMBER For The Appellant : Shri Satish A Mody For The Respondent : Shri Tufail Ahmad Khan ORDER PER C.N.PRASAD (J.M.) : This appeal is filed by the Assessee against the order of the Ld. CIT (Appeals)-8, Mumbai dated 21.12.2011 for the assessment year 2004-05 arising out of the assessment order passed u/s 143(3) r.w.s. 147 of the Act. 2. The Assessee has raised the following grounds 1. On the facts and in the circumstances of the case and in the law the Ld C.1.T.(A) erred in confirming the reopening of the assessment u/s 147 of the Act without any valid reason recorded for the same and merely on the basis of some unestablished information from CIT (A) - 37, Mumbai thereafte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essing Officer determining the income at ₹ 8,09,170/-. While completing the reassessment, the Assessing Officer made addition of ₹ 5 lakhs as undisclosed income being the share application money received by the Assessee from Suryadeep Salt Refinery Chemical Works Ltd. On appeal, the Ld. CIT (Appeals) affirmed the reopening of assessment as well as the addition on merits. Before us, the Assessee challenged the order of the Ld. Commissioner of Income Tax (Appeals) in sustaining the reopening of the assessment as well as the addition on merits. The Ld. Counsel for the Assessee at the outset submits that the objections filed by the Assessee against the reopening of assessment have not been disposed off by the Assessing Officer bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase. The Ld. Counsel submits that there is nothing on record to suggest that income had escaped assessment other than a letter said to have given to the Ld. CIT (Appeals) by Mr Narendra Shah stating that he has provided accommodation entries. No material is there to show that it is a bogus transaction. The Ld. Counsel for the Assessee submits that the Assessee has infact issued shares to the said concern who made investment in Assessee Company. Therefore he submits that even on merits the addition is not sustainable. 5. We have heard the rival submissions, perused the orders of the authorities below. It is an admitted fact that the Assessee immediately after receiving the notice u/s 148 for reopening assessment filed letter stating that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pening notice under section 147 of the Act, the reasons recorded for reopening the assessment should be forwarded to the Assessee and if the Assessee objects to the same, he should first dispose of its objections to the reopening notice . 4. When the Petition reached effective hearing for the first time on 23rd July 2015 for admission, the Revenue accepted the position that the order dated 3rd February 2015 passed on reopening of assessment for AY 2010-11 is without jurisdiction and the same be set aside. However, we were disturbed as on quite a few occasions we had noticed the orders on reassessment were being passed without disposing of the objections. However, in Court the Revenue accepts the position that the order is not sustaina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... General informs us that the Commissioner of Income Tax has on 16th December, 2015 passed an order under Section 264 of the Act setting aside the order of the reassessment dated 3rd February, 2015 passed by the Assessing Officer. It further directed the Assessing Officer to commence the reassessment proceedings afresh after disposal of the Petitioner's objections. However, we are taken aback as we were given to understand that the Commissioner of Income Tax will consider and a mechanism would be put in place for future while curing this injustice. It is very pertinent to note that we could have set aside the order dated 3rd February 2015 passed on merit being an order without jurisdiction on the first effective hearing itself. This for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia Pvt. Ltd. Vs. DCIT (supra). 8. However, we also find that the Bombay High Court in the case of Aggarwal Metals Vs. DCIT [346 ITR 64] considered a situation where the Assessing Officer without disposing of the objections for reopening the assessment passed reassessment order and the Hon ble High Court quashed the assessment, however, operation of notice u/s 148 stayed granting further time for completion of reassessment. 9. Taking the totality of facts and circumstances into account and also keeping in view the reasons for reopening the assessment, we would follow the decision of the Jurisdictional High Court in the case of MSPL Gase Ltd (supra) and hold that reassessment order passed without disposing of the objections is bad in l ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
