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TMI Blog2015 (12) TMI 1854X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings, the appellant filed detailed written submissions vide letter dated 29.07.2010. A Paper Book containing numerous documents relating to the reopening proceedings containing the following :- The appellant also furnished a Paper Book containing 7 case laws: (i) Commissioner of Income Tax v Information Architects (322 ITR 1) Bombay High Court (ii) Zylog Systems Ltd. v ITa (128 ITO 105) ITAT-Chennai Special Bench. (iii) Patni Telecom (P) Ltd. v. ITa (22 SOT 26) ITAT 'A' Bench, Hyderabad. (iv) Changepond Technologies (P) Ltd. v. ACIT (22 SOT 220), ITAT 'A' Bench Chennai. (v) OCIT vs Softsollndia Ltd. (22 SOT 271) ITAT 'A' Bench, Hyderabad. (vi) CIT v Gem Plus Jewellery India Ltd. (330 ITR 175) Bombay High Court. (vii) Rajoo Engineers Ltd. v DCIT (218 CTR 53) Gujarat High Court. 4. Attention was drawn to documents in the Paper Book to the fact;- (i) That the notice u/s.148 is dated 06.03.2009 signed by Shri Bharat B. Garg, ACIT-2(3), Mumbai, (ii) 'The AO, Shri K. R. Iyengar, DCIT-2(3), Mumbai vide letter dated 25.08.2009 sent the attested true copy' of reasons recorded for reopening the assessment for A.Y.2004-05, (iii) The attested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is much less than Rs. 542 Crores. 2. Copy of the written submission of the appellant vide letter dated 29.07.2010 is enclosed 6. The AO sent a remand report dated 30.09.2011 stating as under: "Kindly refer to the letter No. CIT(A)-6/Reportl2011-12 dated 26.09.2011 on the subject matter. 2. Vide the above referred letter I have been directed to submit the submission on the validity of reopening proceedings. My report thereon is as under: 3. The first objection of the assessee is that notice u/s. 14B was issued on 06.03.2009 whereas the reasons for reopening were recorded on 19.03.2009. In this connection I am enclosing copy of the order sheet wherein reasons for reopening were recorded. It is ample clear that the reasons were recorded on 05.03.2009 and not on 19.03.2009. However, in the 'typed copy' of the reasons, the date was wrongly mentioned as 19.03.2009. In view of the above, it is clear that there was a mistake in typed copy communication given to the assessee. 4. Further, there was mistake in communicating the reasons to the assessee. The correct reasons were subsequently provided to the assessee when this mistake was brought to the notice by the assessee. But ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our letter dated October 9, 2009, mentioned that; You have mentioned that the attested copy of the reasons dated 19-03-09 recorded by my predecessor did not pertain to your company. On perusal of the records, it is seen that your contention is correct. It is further seen from the records that there is a clerical error in filing the papers. It is seen from the assessment records that the Assessing Officer has recorded the correct reasons in your case on 19-03-2009, a copy of which is enclosed". (Emphasis supplied). The stated enclosed copy of the reasons, which was furnished to us, were obviously recorded on 19/3/09 as admitted by the A 0. Further, the said reasons were signed by the then A O. (Mr. Bhrat Garg) with a handwritten date of 19/3/09. * Vide our letter dated 28th Oct.2009 we had specifically raised the issue of the reasons for reopening being recorded after the date of the Notice under Sec. 148, which is contrary to the provisions of the said Section, resulting in the reassessment proceedings being bad in law and the same should be dropped. * Vide Rebuttal Order dated 11th Nov.2009, on this specific issue of reasons for re-opening being recorded after the date of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suddenly changed the Department's stand and now contradicts the earlier position taken on four previous occasions being; * Letter dated 25/8/09 of the AO enclosing the attested true copy of the reasons recorded on 19/3/09; * Our letter dated 9/10/09 - informing the A O. that the reasons dated 19/3/09 were not applicable to the appellant and hence the reassessment proceedings had come to an end; * Rebuttal Order dated 10/11/09 - wherein the A. O. referred to the provisions of Sec. 292B; and * Order dated 30/12109 - repeating verbatim his earlier stand. and now states that the reasons were recorded on 05.03.2009. After the conclusion of the reassessment proceedings, the A O. (Mr. Anil Gupta) has enclosed a hand written statement detailing the reasons for re-opening under Sec.148 signed by the then A O. (Mr. Bharat Garg) with date 05/03/09. We fail to understand that when during the re-opening proceedings, we had repeatedly raised the issue that the reasons were recorded after the date of the Notice under Sec. 148, the then AO. (Mr. Iyengar) had never once mentioned that the reasons were recorded on 5th March 2009. In fact he meekly took refuge under the provisions of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he procedure of re-assessment as laid down by the Supreme Court, does not envisage supplementing the reasons furnished during the initiating of the re-assessment proceedings by any other material fact after passing the Rebuttal Order and definitely not after passing the Order under section 143(3) r.w.s.147. The Appellant also submits that it is inconceivable that an A. O. could be so callous in not examining the re-assessment records available with him, especially in a case involving such a high demand and more so where the Appellant repeatedly pointed out to the AO. the fatal effect of the reasons recorded after the date of the Notice. The A. O. cannot be allowed at this late stage to multiply the errors and disregard the procedure as laid down by the Supreme Court in the case of GKN Driveshafts (India) Ltd. For these reasons the Appellant objects to reliance in any manner on "Reasons dated 5/3/09" not produced to the Appellant during the reassessment proceedings. These new reasons are required to be disregarded and the Appeal may please be decided based on the records upto the time of passing the Order u/s.143(3) r.w.s. 147 dated 30/12109 viz. the reasons dated 19/3/09. 8. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is office's letter dated 26.09.2011 which was forwarded by this office to the appellant vide letter dated 04.10.2011 and the appellant filed their comments on the same vide letter dated 03.11.2011. 8.3 The entire sequence of events mentioned in the aforesaid part of the order clearly indicate that the reasons recorded for reopening suffers from various blunders and the same cannot be validated by virtue of section 292B, which states that the notice etc. cannot be deemed to be invalid merely by reason of any mistake, defect or omission in notice other proceedings'. The present case is an absolutely bizarre, weird and out of ordinary having three reasons recorded for reopening, out of which one contains facts that do not pertain to the appellant and is recorded subsequent to the date of issue of notice, the second one was given to the appellant after being informed by the appellant that the first one does not contain facts pertaining to the appellant and was also recorded subsequent to the issue of notice u/s.148, and the third one was never given to the appellant. For reopening an assessment, it is mandatory to record 'reason to believe' prior to issue of the notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning was not recorded after issue of notice u/s.148 dated 6-3-2009. Since note sheet recording entries prior to the date of issue of notice u/s.148 dated 6-3-2009 was not made available to us, it is not possible for us to find out independently as to whether any reasons for reopening was recorded prior to issue of notice u/s.148. As per entry on the note sheet, between 24-8-2009 to 16-12-2009, the assessee had asked for issue of reasons and the AO has sent the reasons. However, the notings of the proceedings carried out by AO before issue of notice u/s.148 was not made available to us. Thus, the copy of notesheet so filed by ld. DR which is incomplete, do not help us to reach to the conclusion as to whether any reasons were ever recorded by the AO prior to the issue of notice u/s.148 on 6-3-2009. Under such circumstances, we have no option other than relying on the finding recorded by CIT(A) to the effect that no reasons were recorded for reopening before the date of issue of notice u/s.148 on 6-3-2009. The CIT(A) has relied on various judicial pronouncements as dealt with hereinabove in his order and held that reopening was not justified. We do not find any reason to interfere in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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