TMI Blog2022 (1) TMI 602X X X X Extracts X X X X X X X X Extracts X X X X ..... he time of hearing inasmuch as the disposal of the Miscellaneous Petitions in the manner as aforesaid. In the absence of challenge to the order passed in Miscellaneous Petitions, the arguments now advanced by the learned counsel for the assessee is wholly untenable - no prejudice is caused to the assessee in restoring the matter back to the file of Assessing Officer to pass a speaking order on the objections and then to conclude the assessment. With great respect, the judgments relied upon by the learned counsel for the appellant - assessee are distinguishable and not applicable to the facts and circumstances of the case. In GKN Driveshafts (India) Ltd., supra, the Hon'ble Apex Court has held that the assessee can seek reasons record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee sought for reasons recorded under Section 148(2) of the Act. The reasons recorded was furnished to the assessee, pursuant to which, the assessee filed objections/reply. The Assessing Officer has passed the assessment order dated 28.12.2010 under Section 144 read with Section 147 of the Act. Being aggrieved by the said order, the appellant - assessee preferred an appeal before the CIT (Appeals) mainly on the ground that no separate order dealing with the objections raised was passed before passing the assessment order dated 28.12.2010. The said appeal came to be partly allowed. The rectification petition filed by the appellant assessee, however, came to be rejected. 3. Being aggrieved by the said orders of the CIT (Appeals) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case? 4) Whether the notice issued under section 148 of the Act, is itself bad in law in as much as the notice is very vague as the notice is very vague as the notice does not specify whether to assess or reassess the income of the Appellant and consequently the order passed under section 144 r/w section 147 of the Act on an invalid notice is bad in law and void ab initio on the facts and circumstances of the case? 5. Learned counsel for the assessee argued that any assessment order sans considering the objections is void ab initio. In the absence of separate speaking order passed by the Assessing Officer considering the objections, the Tribunal ought to have set aside the assessment order. In support of his contentions, le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xious consideration to the arguments advanced by the learned counsel for the parties and perused the material on record. 8. In Deepak Extrusions (P) Ltd., supra, the Co-ordinate Bench of this Court held that the Assessing Officer, not disposing of the objections prior to proceeding with the assessment and further passing the order would indicate that the mandatory procedure of disposal of the objections by the Assessing Officer before proceeding with the assessment has not been followed and exercise of power can be said as not only vitiated, but order of assessment cannot be sustained. Setting aside the said assessment order, it has been observed that the Assessing Officer shall be at liberty to proceed in the matter in accordance with l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt is not suffice, copies of the same must be made available before the Tribunal/Court. 11. The circumstances which forced the Assessing Officer to pass the ex-parte assessment order under Section 144 as narrated in the Assessment order is quoted hereunder:- The notice under Section 148 was issued on 08.03.2010 and served on the assessee on 09.03.2010 requesting the assessee to file return within 16 days. The assessee further sought time to file return of income. Despite granting reasonable opportunity, the assessee has neither filed return of income nor filed any reply. 12. Hence, Assessing Officer has issued a notice under Section 142(1) and further notices were also issued. But the assessee has not filed the return nor adopt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er only after filing of the return of income. Objections could be raised thereafter which requires to be disposed of by Assessing Officer. But the assessee herein has not filed the return subsequent to issuance of notice under Section 148 of the Act nor adopted the return filed earlier. Hence, alleging non-disposal of the objections by a speaking order has been rightly considered by the Tribunal and the matter has been restored back to the file of the Assessing Officer. Hence, we find no perversity or infirmity in the order impugned. 15. For the reasons aforesaid, the substantial questions of law are answered in favour of the Revenue and against the assessee. Resultantly, the appeal stands dismissed. - - TaxTMI - TMITax - Income ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
