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TMI Blog2019 (5) TMI 1768X X X X Extracts X X X X X X X X Extracts X X X X ..... ars 2007-08 and 2008-09. ITA no.3985 & 3986/Mum./2016 Revenue's Appeals for A.Y. 2008-09 & 2007-08 2. The only effective common ground raised by the Revenue in both the appeals reads as under:- "On the facts and in the circumstances of the case and in law, the learned Commissioner (Appeals) erred in quashing the re-assessment proceedings on the ground that the Assessing Officer had, neither during the re-assessment proceedings nor at the time of passing the assessment order properly rejected the assessee's objection to such re-opening inasmuch as he ought to have restored the matter to the Assessing Officer with a direction to follow the procedure laid down by the Hon'ble Supreme Court in the case of GKN Driveshafts, in consolance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act by disallowing the bond issue expenditures in both the assessment years. The assessee challenged the assessment orders so passed by filing appeals before the first appellate authority. 4. Before learned Commissioner (Appeals), the assessee while challenging the validity of the re-assessment order passed contended that without disposing of the objections raised by the assessee against the re-opening of the assessment under section 147 of the Act, the Assessing Officer could not have passed the assessment orders. Learned Commissioner (Appeals) after considering the submissions of the assessee and on verifying the facts on record found that, though, in the course of assessment proceedings the assessee had raised objections challenging ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner (Appeals) submitted, non-disposal of the objections raised by the assessee by the Assessing Officer before completion of the assessment is not a mere procedural irregularity but affects the jurisdiction of the Assessing Officer to pass the assessment orders. Therefore, he submitted, such defect in the assessment orders is not a curable one which can be rectified by restoring it again to the Assessing Officer. In support of such contention, learned Sr. Counsel for the assessee relied upon the following decisions:- i) GKN Driveshrafts India Ltd. v/s ITO & Ors., [2003] 259 ITR 019 (SC); ii) KSS Petron Pvt. Ltd. v/s ACIT, ITA no.224/2014, dated 03.10.3026; iii) TML Drive Lines Ltd. v/s DCIT, ITA no.5256/Mum./2015, dated 31.01.2018; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. (supra), wherein, the Hon'ble Jurisdictional High Court has held that if the re-assessment order is passed without disposing of the objections raised by the assessee, they have to be quashed and no second opportunity can be given to the Assessing Officer to pass fresh assessment orders after disposing of the objections of the assessee. The same view has been expressed by the Co-ordinate Bench in the decisions cited by the learned Sr. Counsel for the assessee. Upon careful reading of the decision of the Hon'ble Supreme Court in Larsen Toubro Ltd. v/s State of Jharkhand & Ors., in Civil Appeal no.5390/2007, cited by learned Departmental Representative, we find it to be not applicable to the facts of the present case, as the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in limine at the stage of admission without a speaking or reasoned order does not constitute a binding precedent under Article-141 of the Constitution of India. This principle has been well propounded in case of Kunhayammed Vs. State of Kerala 2001(129) ELT 11 (S.C.). Aforesaid view was again affirmed by the hon'ble Supreme Court in case of Khoday Distilleries Ltd. Vs. Shree Mahadeshwara Sahakara Sakkare Karkhane Ltd. while disposing of Civil Appeal no.2432 of 2019 in judgment dated. 01.03.2019. Therefore, it cannot be said that in the aforesaid decision, the Hon'ble Supreme Court has laid down the proposition that non-disposal of objections against the validity of proceedings initiated under section 147 of the Act is a procedural irreg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith a direction to frame de novo assessment. During the fresh assessment proceeding assessee pleaded that the objection against reopening of assessment should be disposed of first. In the aforesaid factual context, the Hon'ble Jurisdictional High Court did not entertain assessee's plea. However, the Hon'ble Jurisdictional High Court in KSS Petron Pvt. Ltd. (supra), in no uncertain terms, has held that if the Assessing Officer before completion of assessment has not disposed of the objection, the assessment order cannot be restored back to the Assessing Officer for framing assessment de novo after disposal of the objections of the assessee. Though, the Hon'ble Madras High Court in case of Home Finders Housing Ltd. referred to ear ..... X X X X Extracts X X X X X X X X Extracts X X X X
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