TMI Blog2019 (4) TMI 1424X X X X Extracts X X X X X X X X Extracts X X X X ..... objection up to 4/3/2013 and the objections were disposed off on 8/3/2013 whereas the final assessment order based on the above reason was passed on 20/3/2013. This clearly shows that the learned assessing officer has not followed the dictate of the decision of the in case of GKN driveshafts Ltd. Vs ITO [ 2002 (11) TMI 7 - SUPREME COURT] . Further the assessee was not given 4 weeks time after the rejection of the objections against the reopening of the assessment to explore the alternative remedy available to the assessee which is also contrary to the decision in case of ASIAN PAINTS LIMITED. VERSUS DEPUTY COMMISSIONER OF INCOME-TAX AND ANOTHER. [ 2007 (1) TMI 159 - BOMBAY HIGH COURT] wherein it has been specifically held that if Assessing Officer does not accept the objections so filed, he shall not proceed further in the matter within a period of four weeks from the date of receipt of service of the said order on objections, on the assessee. In the present case even before the service of the order rejecting the objections of the assessee the learned assessing officer as passed the assessment order on 20/3/2013. In view of this, there is a clear-cut violation of the principle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant company for re-assessment proceedings u/s 147. 2. The order passed by Learned Assessing officer disposing off objections filed by appellant company for re-assessment proceedings u/s 147 is void, illegal, bad in law and unethical and should be quashed: a. The Learned Assessing officer has erred in law by disposing off objections raised by appellant company without recording any specific reason. b. The order disposing off objections filed by appellant company for re-assessment proceedings u/s 147 was served upon appellant company on 23rd March 2013 i.e. even after assessment order u/s 148 was served upon assessee. c. The Learned Assessing has passed order without considering grounds of objection as raised by appellant company. The Ld. AO has no where rejected objections raised by appellant company and instead passed order on his own presumptions. d. The Learned Assessing officer has erred in law by relying on case laws, facts of which are completely different from facts of appellant company and on contrary support claim of appellant that proceedings u/s 147 cannot be initiated as no new facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ressed letter on 25/2/2013. In response to that, learned AO furnished reasons for reopening. Assessee filed its objection on 06/03/2013. Meanwhile assessee also filed a writ petition before honourable Delhi High Court challenging validity of initiation of reassessment proceedings under section 147 which was withdrawn by assessee as meanwhile learned assessing officer has already passed assessment order under section 147 read with section 143 (3). The learned assessing officer also disposed of objections raised by appellant by order dated 08/03/2013 which was served on assessee on 23/03/2013 whereas original assessment order under section 147 read with section 143 (3) was passed on 20/3/2013. While passing order under section 147 read with section 143 (3) of income tax act learned assessing officer disallowed a sum of INR 1 0865713/ holding same that advances written off is capital expenditure and therefore disallowable. Consequently assessment order was passed at a total income of INR 1 0865713 in terms of order dated 20/3/2013. 3. The assessee aggrieved with order of learned assessing officer preferred an appeal before learned CIT A. The assessee challenged ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also referred to page number 139 of the paper book which is a letter dated 8/3/2013 of the assessing officer which disposed of the assessee is objection for reopening of the cases. He stated that in that order in para number 3 the AO has stated that on 25/2/2013 a copy of the reasons was again provided to the assessee. He submitted that it is a blatant wrong statement by the assessing officer, as prior to that reasons for reopening were not at all provided. He further submitted that despite having the objection of the assessee, the learned AO rejected the objection simply stating that since the assessee has not attended and not file any objection prior to the appointed date the objections are not considered valid hence rejected. He submitted that firstly, the learned AO did not give the reasons in time and secondly after giving the reasons belatedly did not consider the objection on the merits of the case. He submitted that even only this issue if considered in light of the several decisions, the reopening of the assessment deserves to be quashed. He also referred to the reasons recorded at page number 147 of the paper book dated 22/03/2012. He stated that such reasons does not sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eassessment proceedings and issue involved therein in 154 notice as well as the 148 proceedings. She stated that the assessee has been given reasons for reopening in time, assessee filed an objection, the learned assessing officer disposed of such objections by speaking order, therefore now the grievance of the assessee that reasons were provided to the assessee by the learned AO belatedly does not survive as assessee was also given complete opportunity. She relied up on [2018] 98 taxmann.com 200 (Madras)/[2018] 259 Taxman 266 (Madras) and stated that 76. Thus, certain aspects which is contemplated under the provisions of the Act, cannot be interpreted, so as to defeat the purpose for which such a provision was enacted by the Legislators. Constructive interpretation of the Act and the Rules are of paramount importance. The Rule of constructive interpretation requires that the possible object and the purpose to be achieved is met out by adopting not only the balancing approach, but also by providing all reasonable opportunities to the persons, who all are connected or aggrieved. She stated such an effort is made by the dl AO and assessee can not be aggrieve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The learned authorised representative vehemently submitted that when the question dated 31/8/2009 the learned assessing officer raised the similar issue by question number 18 and the assessee replied it. On careful examination of question number 18 it is found that the learned assessing officer has asked about the loans and advances appearing on the assets side of the balance sheet. The learned AO further asked the relationship of the company with the parties to move the advances have been given and whether any interest has been charged on these advances are not. The learned AO further asked to furnish notes on applicability of section 2 (22) (e) of the act. The assessee submitted the details of loan and advances amounting to INR 1 0694113 as on 31st of March 2007 as per annexure 1. As per annexure 1, the assessee has given the details of the advance recoverable of INR 1 0865713 and shown less written off the same amount. On perusal of these documents of the query by the assessing officer and reply by the assessee it is apparent that the learned assessing officer has not raised any query about the advances written off by the assessee whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er and answers given by the assessee but in others cases, a deeper scrutiny or examination may be necessary. The stand of the Revenue and the assessee would be relevant. Several aspects including papers filed and submitted with the return and during the original proceedings are relevant and material. Sometimes application of mind and formation of opinion can be ascertained and gathered even when no specific question or query in writing had been raised by the Assessing Officer. The aspects and questions examined during the course of assessment proceedings itself may indicate that the Assessing Officer must have applied his mind on the entry, claim or deduction etc. It may be apparent and obvious to hold that the Assessing Officer would not have gone into the said question or applied his mind. However, this would depend upon the facts and circumstances of each case. Therefore there is no change of opinion and this argument of the learned authorised representative deserves to be rejected. 9. The main grievance of the learned authorised representative is that there is no tangible material coming into the possession of the assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ieve possessed by the learned assessing officer in respect of which Assessee Company has escaped assessment within the meaning of section 147 of the income tax act 1961. Assessee further requested for the reopening reasons on 25/2/2013. On that date the learned assessing officer, give the reasons. Assessee was given time to file an objection up to 4/3/2013. The assessee filed objection on 6/3/2013. The learned AO passed an order disposing of the objection raised by the assessee as per order dated 8/3/2013. The learned authorised representative submitted that that these order was never served on the assessee before the service of the assessment order. The assessment order was passed on 20/3/2013. Therefore, it is apparent that assessee was provided the reasons only on 25/2/2013 asking to file an objection up to 4/3/2013 and the objections were disposed off on 8/3/2013 whereas the final assessment order based on the above reason was passed on 20/3/2013. This clearly shows that the learned assessing officer has not followed the dictate of the decision of the honourable Supreme Court in case of GKN driveshafts Ltd. Vs ITO 259 ITR 19. Further the assessee was also not g ..... 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