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TMI Blog2018 (8) TMI 2008X X X X Extracts X X X X X X X X Extracts X X X X ..... ead with section 147 of the Income Tax Act, 1961 (hereinafter 'the Act'). 2. The first issue in this appeal of assessee is against the order of CIT(A) holding that the objection raised by the assessee before the AO against reopening is properly dealt by the Assessing Officer. For this assessee has raised the following ground: - "1. On the facts and circumstances of the case and in law, the learned CIT(A) erred in holding that the objections raised by the appellant before the AO against reopening of the assessment have been property dealt by the Assessing Officer. The CIT(A) ought to have quashed the assessment proceeding as the AO has failed in addressing the objections raised by the appellant against reopening by passing a speaking orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laimed purchase from this party. /since the assessee has physically not purchase any goods from the above alleged sellers, therefore the expenditure to that extent i.e. Rs. 11,813 has been inflated by the assessee. Since there is inflation of expenditure which ultimately results into under assessment of income therefore I have reasons to believe that income to the extent of Rs. 88,313 chargeable to tax has escaped assessment for AY 2009-10. Accordingly, the case of the assessee requires to be reopened under section 147 of the I.T. Act. In order to frame assessment in its proper perspective and to bring to tax appropriate income of the assessee including under stated income on account of accommodated purchased bills, as discussed above. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. vs. ACIT in ITA No. 224 of 2014 (Bom.), wherein Hon'ble Bombay High Court discussing the case law of Hon'ble Supreme Court in the case of GKN Driveshafts (India) Ltd. Vs. ITO (2003) 259 ITR 19 (SC), quashed the assessment vide Para 7 to 11 as under: - "7 On further Appeal, the Tribunal passed the impugned order. By the impugned order it held that the Assessing Officer was not justified in finalizing the Assessment, without having first disposed of the objections of the appellant. This impugned order holds the Assessing Officer is obliged to do in terms of the Apex Court's decision in GKN Driveshafts (India) Ltd., v/s. ITO 259 ITR 19. In the aforesaid circumstances, the order of the CIT(A) and the Assessing Officer were quashed an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in one year from the end of the financial year in which the order under Section 254 of the Act, was passed by the Tribunal and received by the Commissioner of Income Tax. 10 The Director of the appellant has filed an affidavit dated 19th September, 2006. In the affidavit, it is stated that consequent to the impugned order of the Tribunal dated 14th August, 2013, the Assessing Officer has not passed any order of reassessment. Time was granted on the last occasion to enable the Respondent to respond to the affidavit dated 19th September, 2006 of the Director of the Appellant Company. The Respondent is unable to dispute the facts stated in the affidavit dated 19th September, 2016 filed by the Director of the Appellant Company. The time to pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issal of SLP by Hon'ble Supreme Court is merely exercising its discretionary jurisdiction to grant or not to grant leave to appeal. The learned Counsel for the assessee relied on the decision of Hon'ble Supreme Court in the case of Kunhayammed vs. State of Kerala (2010) 113 Taxman 470 (SC). 8. We have heard the rival contentions and gone through the facts and circumstances of the case. We find from the facts of the case that the AO has not adjudicated the objection raised by assessee on the reasons recorded for issuance of notice under section 148 of the Act vide letter No.SC-148/BS/A.Y.09-10/02 dated 30.04.2014. We have gone through the assessment order and other material placed before us, which in no way indicates that the AO has adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that since the procedure laid down by the SC in the aforementioned decision was mandatory, the AO had in fact not disposed of the objections by a speaking order. Nevertheless, the CIT (A) held that the said defect "does not make the assessment order illegal and hence it cannot be quashed. It is a technical mistake which is curable." 6. The Court is of the considered view that after having correctly understood the decision of the Supreme Court in GKN Driveshafts (India) Ltd. (supra) as mandatorily requiring the AO to comply with the procedure laid down therein and to dispose of the objections to the reopening order with a speaking order, the CIT (A) committed an error in not quashing the reopening order and the consequent assessment.." 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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