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TMI Blog2018 (5) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... ax Act, 1961 which is beyond jurisdiction, void ab initio and needs to be quashed. 2. The ld. CIT(A) has erred in ignoring assessee's contention regarding non disposal of objections by the AO which were raised by the assessee during the assessment year against the reopening of case which is highly arbitrary, unjustified and uncalled for. 3. The Ld. CIT(A) has erred in law and facts of the case in upholding the addition u/s. 2(22)(e) of Rs. 18 00 000/- which is highly unjustified, uncalled for and bad in law. 4. The assessee craves the right to add, amend or modify any ground of appeal. 2. The brief facts of the case are that search and seizure operation was carried out at the residential premises of the assessee on 29.4.2008. Not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the aforesaid notice. Thereafter, a notice u/s. 143(2) of the Act was also issued and on 27.9.2013 the AR of the assessee appeared and filed written submissions. After considering the said written submission, the AO made the addition of Rs. 18 lacs and assessed the income of the assessee at Rs. 83,95,150/- vide order dated 30.9.2013 passed u/s. 147/143(3) of the Act. Against the assessment order, the assessee appealed before the Ld. CIT(A), who vide his impugned order dated 27.10.2014 has dismissed the appeal of the assessee. Aggrieved with the impugned order, the assessee is in appeal before the Tribunal. 3. During the hearing, learned A.R. of the assessee Sh. Rajesh Arora, CA appeared and stated that the assesee's case was reopened by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere duly examined and were not acceptable to the AO on the reasons given at page no. 4 of the assessment order, hence, he rightly made the addition of Rs. 18 lacs. He further stated that Ld. CIT(A) has rightly observed that the assesee relied upon the Apex Court Decision in the case o GKN Driveshafts (India) Ltd. vs. ITO (Supra) to content that AO did not di pose the objections raised by the assessee to the issuance of notice by way of speaking order. However, it has been held in the case of ITO vs. Smt. Gurinder Kaur (2006) 102 ITD 189 (Del) the Tribunal held that non- communication of reasons is not fatal in the light of the decision of the Apex Court in S Narayanappa vs. CIT (1967) 36 ITR 219 (SC). He further stated that this case render ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 65,95,150/-, thereby making no additions in the said assessment 5.1 Further, the case of the assessee reopened by issuing notice under section 148 of the Act on 14.03.2013 [P.B.l7] In the reasons of reopening [P.B.l8] the AO has recorded that M/ s G.P. & Company Pvt. Ltd. has raised a loan of Rs. 36,00,000 from M/s SVS Propmart Pvt. Ltd., in which the assessee and his brother Sh. Aman Sharma are having more than 20% shareholding in the companies. The AO stated that Sh. Aman Sharma and Sh. Vipin Sharma (assessee) are holding more than 20% shareholding in both the companies, hence, Rs. 18,00,000 (being 50% of the loan of Rs. 36,00,000) should be treated as deemed dividend in the hands of the appellant being a substantial shareholder. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not done this, which is against the mandate of the decision of the Hon'ble Gujarat High Court in the case of Vishwanath Engineers vs. ACIT (2013) 352 ITR 549 wherein, the Hon'ble High Court has relied on the judgment of Hon ble Apex Court in the case of GKN Driveshafts vs ITO reported in 259 ITR 19 We find that the Apex Court in the case of GKN Driveshafts (India) Ltd. v ITO [2003] 259 ITR 19/ [2002] 125 has observed as under:- "19. Apart from the aforesaid fact, in case of GKN Drioeshafts (India) Ltd. (supra), the Supreme Court has clearly laid down the law that the Assessing Officer is bound to disclose the reason of reassessment within reasonable time and on receipt of the reasons, the assessee is entitled to raise objection and if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t fatal. However, Ld. CIT(A) has been misled by the said decision since the said judgment is not applicable to the present facts of the case. The assessee has not contested the non-communication of reasons by the AO but has challenged the action of AO in not disposing off objections of the assessee which is mandated by the Hon'ble Supreme Court decision in the case of GKN Driveshafts (India) Ltd. 5.4 Keeping in view of the facts and circumstances of the case as explained above and respectfully following the precedent, as aforesaid, we are of the considered view that AO is under a mandate to dispose of such objections before proceeding with the assessment by passing a speaking order, which has not been done by him, therefore, the reasse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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