9911796707
TMI Blog2018 (7) TMI 954X X X X Extracts X X X X X X X X Extracts X X X X ..... e heard together and are being disposed of by this common order. (For the sake of convenience, W.P.(T)No.327/2017 is taken as a lead case.) 2. The petitioners in this batch of writ petitions questioned the order dated 2-8-2017 passed by the Assistant Commissioner of Income Tax, Raipur, called as a rebuttal order to the objections raised against reopening of the case under Section 147 of the Income Tax Act, 1961 (for short, 'the IT Act') stating inter alia that the petitioners were assessed for the assessment year 2010-11 and regular assessment order was passed on 12-3-2013 and first time, they were served with notice dated 18-7-2017 under Section 142(1) of the IT Act on 21-7-2017. After receipt of notice, the petitioners moved an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were supplied, rather a detailed order running into 11 pages was served to them rejecting their application, as such furnishing of reasons to believe is sine qua non for reopening the assessment as mandated by the Supreme Court in the matter of GKN Driveshafts (India) Ltd. v. Income Tax Officer and others (2003) 1 SCC 72. Therefore, the impugned order be set aside and the writ petitions be allowed. 5. Mrs. Naushina Afrin Ali, learned counsel appearing for the respondents, would submit that the petitioners were served with notice under Section 148 of the IT Act and while deciding the representation, reasons to believe is a part of rebuttal order as such, the statutory compliance has strictly been made and no such ground is available ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment year by reason of the failure on the part of the assessee to make a return under section 139 or in response to a notice issued under sub-section (1) of section 142 or section 148 or to disclose fully and truly all material facts necessary for his assessment, for that assessment year: xxx xxx xxx xxx xxx xxx xxx xxx xxx" 8. Thus, Section 147 of the IT Act requires recording of reasons to believe. Notice under Section 148(1) of the IT Act has to be issued where income has escaped assessment under Section 147 of the IT Act. Section 148(1) of the IT Act reads as follows: - "148. (1) Before making the assessment, reassessment or recomputation under section 147, the Assessing Officer shall serve on the assessee a notice requirin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titled 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 disclosed in these proceedings, the assessing officer has to dispose of the objections, if filed, by passing a speaking order, before proceeding with the assessment in respect of the abovesaid five assessment years." 10. The decision of the Supreme Court in GKN Driveshafts (India) Ltd. (supra) was considered by the Delhi High Court in the matter of Haryana Acrylic Manufacturing Company v. The Commissioner of Income Tax IV and another (2009) 308 ITR 38 and Their Lordships of the Delhi High Court held that it is mandatory for the Assessing Officer to supply reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasons as laid down by the Apex Court must be furnished to the Assessee when sought for so as to enable the Assessee to object the same before the Assessing Officer. Thus, in the absence of reasons being furnished, when sought for would make an order passed on reassessment bad in law. The recording of reasons (which has been done in this case) and furnishing of the same has to be strictly complied with as it is a jurisdictional issue. This requirement is very salutary as it not only ensures reopening notices are not lightly issued. Besides in case the same have been issued on some misunderstanding/ misconception, the Assessee is given an opportunity to point out that the reasons to believe as recorded in the reasons do not warrant reopenin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the IT Act. On the other hand, reasons to believe as recorded under Section 147 of the IT Act were not supplied straightway to the petitioners despite request made by the petitioners, though rebuttal order contains reasons recorded in para 2 and thereafter, the learned assessing authority considering the application in great detail also came to the conclusion that the objections raised to the proceeding initiated holds no water. Their Lordships of the Supreme Court in GKN Driveshafts (India) Ltd. (supra) clearly recorded that the Assessing Officer is bound to furnish the reasons within a reasonable time and on receipt of reasons, the noticee/assessee is entitled to file objections to the issuance of the notice and the objections have to b ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
