9911796707
TMI Blog2018 (9) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... completed the assessment proceedings triggering to induce the belief that income has escaped assessment to issue the notice u/s.148 of the Act, for the second time on 21/11/2013 and the state of affairs on that date alone had to be considered for escapement of income to issue the notice for the second time and consequently, in the absence of any fresh materials the notice issued for the second time is bad in law and consequently reassessment requires to be cancelled. 2.2 Without prejudice to the above, the authorities below failed to appreciate once the assessment is made the appellant is assessed to tax and merely because the assessment was set-aside on account of the default of the A.O. to comply with the law would not render the income assessed with the character of escaping income and therefore, the proceedings initiated by the fresh notice u/s.148 of the Act, are illegal and requires to be cancelled. 2.3 Without prejudice to the above, the authorities below failed to appreciate that the Hon'ble ITAT had directed earlier in its order dated 28/09/2011 that the A.O. should record the reasons first and call upon the appellant to file objections and dispose off the same, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eek waiver with the Hon'ble CCIT/DG, the appellant denies himself liable to be charged to interest u/s.234-A and 234B of the Act, which under the facts and in the circumstances of the appellant's case and the levy deserves to be cancelled. 5.1 Without prejudice to the above, the appellant has paid the taxes pursuant to the original assessment and these taxes becomes refundable upon the cancellation of the assessment pursuant to the order of the Hon'ble ITAT as well as the Hon'ble CIT[A] and such amounts should be taken credit to while calculating the tax payable in respect of the returns filed in response to the second notice u/s.148 of the Act, having regard to the ratio of the decision of the Hon'ble Supreme Court in the case of CIT V. PRANNOY reported in 309 ITR 231 and also in terms of the Board Circular No.2/2015 dated 10/02/2015 on the chargeability of interest u/s.234A and 234B of the Act, where the Board considered the levy of interest u/s.234A and 234B is only compensatory. 6. For the above and other grounds that may be urged at the time of hearing of the appeal, your appellant humbly prays that the appeal may be allowed and Justice rendered and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t year 2002-03 on 31.03.2003 and for the assessment year 2004-05 on 02.09.2004. These assessments were reopened by issuing a notice under section 148 for assessment year 2001-02 on 28.02.2008, for assessment year 2002-03 on 20.02.2008 and for assessment year 2004-05 on 15.02.2008. In response thereto, vide letter dated 20.03.2008, the AO was informed that return filed be treated as return filed in response to notice under section 148 of the Act. The assessee has also sought the reasons recorded for reopening the assessment. Vide order dated 20.07.2008, the reasons for reopening assessment were furnished and the assessee filed the objections for reopening the assessment on 20.08.2008. Consequently, the assessment was framed under section 143(3) r.w.s. 147 of the Act by the AO without disposing off the objections filed by the assessee for reopening the assessment. 4. The assessment order was challenged by filing an appeal before the CIT(A) on 31.03.2009. Appeal was disposed off by the CIT(A). Against the order of CIT(A), an appeal was filed before the Tribunal and the Tribunal has disposed off all these appeals vide order dated 28.09.2011 and directed the AO to dispose off the objec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he CIT(A) and also completed the assessment. Therefore, there is no error in the order of the AO, as the order of CIT(A) has not been challenged and has attained the finality. 6. Having carefully examined the order of authorities below in the light of rival submissions, I find that vide order dated 20.08.2011, the Tribunal has set aside the order of CIT(A) and remanded the matter back to the AO with a direction to dispose off the objections filed by the assessee in respect to reopening by issuing notice under section 148 first and thereafter decide the case afresh in accordance with law after providing due and reasonable opportunity of being heard to the assessee. The Tribunal did not adjudicate any other grounds raised on merit, as the matter was restored to the AO to pass a fresh assessment order after disposing of the objections raised by the assessee against reopening of the assessment. But the AO did not pass assessment order. He has simply disposed off the objections filed by the assessee. Against this order, the assessee preferred an appeal before the CIT(A) and the CIT(A) without looking to the order of the Tribunal properly has issued the directions to the AO to issue not ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
