TMI Blog2017 (8) TMI 182X X X X Extracts X X X X X X X X Extracts X X X X ..... on such date would not take place though it was contended by the learned counsel appearing for the respondents that such holiday did not apply to the respondents-Revenue. - Writ Petition No. 38 of 2017 - - - Dated:- 14-6-2017 - F. M. Reis And Nutan D. Sardessai, JJ. For the Petitioner : S. R. Rivankar and Rama Rivankar, Advocates For the Respondents : Susan Linhares, Advocate JUDGMENT F. M. Reis, J. 1. Heard Shri S. R. Rivankar, learned counsel appearing for the petitioner and Ms. Susan Linhares, learned counsel appearing for the respondents. 2. Rule. Heard forthwith with the consent of the learned counsel. Learned counsel appearing for the respondents waives service. 3. The challenge in the above petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiated by the Assessing Officer under section 142 of the Income-tax Act. The learned counsel further pointed out that on perusal of the objections raised by the petitioners on December 6, 2016, there were different legal issues raised with regard to the intended reopening of the assessment and also brought to the notice of the Assessing Officer that the Tribunal for the previous assessment year 2010-11 had in fact allowed the deduction as claimed by the petitioners. The learned counsel further pointed out that as the Assessing Officer has failed to pass a speaking order, the subsequent proceedings itself stands vitiated and, as such, according to him, the impugned order as well as the assessment order passed on December 23, 2016 be quashed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne through the records. The apex court in the judgment reported in GKN Driveshafts (India) Ltd. v. ITO [2003] 259 ITR 19 (SC), has observed thus (page 20) : We see no justifiable reason to interfere with the order under challenge. However, we clarify that when a notice under section 148 of the Income-tax Act is issued, the proper course of action for the noticee is to file a return and if he so desires, to seek reasons for issuing notices. The Assessing Officer is bound to furnish reasons within a reasonable time. On receipt of reasons, the noticee is entitled to file objections to issuance of notice and the Assessing Officer is bound to dispose of the same by passing a speaking order. In the instant case, as the reasons have been disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh the recitals in the notice under section 142 of the Income-tax Act cannot be a substitute to a speaking order as envisaged by the apex court in the said judgment in the case of GKN Driveshafts (India) Ltd. v. ITO (supra), we find that even on going through the recital therein, the objections raised by the petitioner have not been dealt with by the Assessing Officer whilst proceeding to issue a notice under section 142 of the Income-tax Act. 8. With regard to the contention of the learned counsel appearing for the respondents, that the petitioner have an alternate remedy, we find that as the notice under section 142 of the Income-tax Act itself stands vitiated for failure to issue a speaking order in terms of section 148 of the Income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of fundamental principles of judicial procedure ; (4) where the statutory authority resorted to invoke the provisions that are not available ; and (5) where the statutory authority acted in total violation of the principles of natural justice. In the case on hand, the petitioner challenges the very initiation of proceedings for reopening of assessment, as being without jurisdiction and also in complete defiance of the statutory prescriptions. Therefore, this is not a case, which can be thrown out on the ground of availability of alternative remedy. 10. In such circumstances, as the petitioners have challenged the jurisdiction of the Assessing Officer to proceed to issue a notice under section 142 of the Income-tax Act without pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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