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TMI Blog2017 (9) TMI 1042X X X X Extracts X X X X X X X X Extracts X X X X ..... g of Section 147 of the Act. 3. The petitioner by letter dated 04.04.2016, requested the respondent to furnish reasons for reopening. Before the petitioner could receive the reasons for reopening, a notice, dated 23.08.2016, was issued under Section 143(2) of the Act, directing the petitioner to submit revised computation with sale and other agreements/records in hard copy format to substantiate that disputed capital gain were offered to tax. The petitioner would state that she had no idea of what transaction the respondent was referring to as she had not been furnished the reasons on which, the income tax assessment had been reopened on the said date. By letter dated 01.09.2016, the respondent furnished the reasons for reopening. The petitioner sent her objections, by letter dated 28.09.2016, wherein, apart from furnishing various factual details, the petitioner pointed out that the proviso to Section 147 of the Act is clear in that, when more than four years have lapsed from the end of the relevant assessment year, where a scrutiny assessment has already been made under Section 143(3), it is necessary for the Income Tax Department to show that the assessee had failed to truly an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .224 of 2014, dated 03.10.2016. 5. Mrs.Hema Muralikrishnan, learned Senior Standing Counsel appearing for the Department submitted that the assessment order has been passed dealing with the objections raised by the petitioner for reopening the assessment and after elaborate discussion, the assessment has been completed. In the initial part of the assessment order, the correctness of reopening has been affirmed by proper rebuttal to the objections against reopening. Further, there is no requirement in terms of Section 147 of the Act to pass a separate or distinct order while disposing of the objections for reopening and it only insisted that the objections should be necessarily brought on record and countered in a speaking manner and in the impugned assessment order, the objections have been dealt with and the petitioner if aggrieved, should prefer an appeal as against the impugned assessment order. 6. It is further submitted that the petitioner had omitted to offer true and correct long term capital gains on transfer of asset through the Joint Development Agreement (JDA). As per the JDA the petitioner was to receive 40% constructed space in lieu of transfer of 60% UDS of land tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions) reported in (2008) 307 ITR 158 (A.P), in which, the decision of the Hon'ble Supreme Court in Sona Builders vs. Union of India reported in (2001) 10 SCC 280 was followed and it was held that an order in violation of principles of natural justice deserves to be quashed and not set aside and remanded. It is submitted that this decision in the case of Sona Builders vs. Union of India was not considered by the Division Bench of this Court in the case of Areva T & D India Limited vs. Assistant Commissioner of Income-tax. Reliance was placed on the decision of the Division Bench of this Court in the case of Sterlite Industries (India) Ltd. vs. Assistant Commissioner of Income Tax and another reported in (2008) 304 ITR (Mad), wherein, it was held that when a notice under Section 148, is without jurisdiction, especially in cases beyond four years, where there is no failure on the part of the assessee, to fully and truly disclose all material facts, the proceedings deserves to be quashed simplicitor. 9. Heard the learned counsels appearing for the parties and perused the materials placed on record. 10. The material facts as set out above, are not in dispute. The assessment for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above decisions had held that the date of entering into the development agreement/power of attorney was the effective date for transfer of property, I filed a revised return for the assessment year 2007-08 and paid the difference in tax to the tune of Rs. 11,51,422/-. 11. Thus, the petitioner represented that she has already offered capital gain tax on transfer of property in question during the assessment year 2007-08 and requested the respondent to drop the proceedings. Further, it was pointed out that in respect of one of the co-owners, the Commissioner of Income Tax (Appeals) has passed orders, dated 15.02.2016, annulling the reassessment of income on the ground that the capital gains tax had already been paid during the assessment year 2007-08. Admittedly, after the receipt of the objections, the respondent did not pass a separate order disposing of the objections. However, the respondent passed the impugned assessment order, in which certain objections raised by the petitioner for reopening the assessment were rejected. 12. Thus, two issues fall for consideration namely, whether the respondent was duty bound to pass a separate speaking order on the objections raised by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n some what similar circumstances, the Division Bench of the Bombay High Court in KSS Petron Private Ltd. (supra), held that the Assessing Officer was not justified in finalizing the assessment without having first disposed of the objections of the assessee. While testing the correctness of the decision of the CIT (Appeals), which quashed the order of the Assessing Officer restored the assessment to the Assessing Officer to pass fresh orders after disposing of the objections to reopening notice in accordance with law, the Division Bench held that once the impugned order finds the assessment order is without jurisdiction, as the law laid down by the Apex Court in the case of GKN Driveshafts (India) Ltd., (supra), has not been followed, then there is no reason to restore the issue to the Assessing Officer to pass fresh/further orders and if this is permitted, it would give license to the Assessing Officer to pass orders on reopening notice, without jurisdiction (without compliance of the law in accordance with the procedure). Further it was pointed out that to ensure that the reopening notices are disposed of expeditiously, the Parliament itself has provided in Section 153(2) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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