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TMI Blog2023 (6) TMI 521X X X X Extracts X X X X X X X X Extracts X X X X ..... gned assessment and passing the impugned order u/s 147, is bad in law and against the facts and circumstances of the case and more so when statutory conditions as stipulated u/s 147 to 151 have not been complied with. 2. That in any case and in any view of the matter, assumption of jurisdiction in reopening the assessment u/s 147, is bad in law and against the facts and circumstances of the case. 3. That having regard to the facts and circumstances of the case, the impugned assessment order ought to have been quashed on the ground that four weeks time was not allowed between the date of disposal of the objection and date of re-assessment order in view of the several judicial decisions." 4. Since the additional grounds taken by the assessee go to the root of the matter, we decided to proceed with the same. 5. Representatives of both the sides were heard at length. Case records carefully perused and relevant documentary evidences duly considered in light of Rule 18(6) of the ITAT Rules. 6. The peculiar facts of the case are that the impugned assessment order is dated 10.03.2022. Notice u/s 148 of the Income-tax Act, 1961 [the Act, for short] was issued on 05.02.2021. On 05.04. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court. It is not open to the AO to feign ignorance of the law declared by the Court and pass orders in defiance of it. The Bombay High Court in Asian Paints Vs DCIT (2008) 296 ITR 90 (Bom) has clearly laid down that when an assessment is sought to be reopened u/s. 148 of the Act and the objections of the assessee have been overruled by the AO, then in such a case the AO will not proceed further in the matter for a period of four weeks from the date of receipt of the order rejecting the objections of the assessee." 16. The AO has undoubtedly flaunted the procedure laid down by the Hon'ble Jurisdictional High Court thereby making the issuance of notice u/s. 148 of the Act bad in law. 16.1. Having said all that considering the facts of the case from any angles in the light of our detailed discussion hereinabove, in our considered opinion, the reassessment proceedings based on the notice issued u/s. 148 is bad in law. We, therefore, set aside the findings of the Ld. CIT(A) and quash the reassessment order made u/s. 143(3) r.w. Sec. 147 of the Act." 10. The co-ordinate bench again in the case of Smt. Kamlesh Goel ITA No. 5730/DEL/2017 had an occasion to consider a similar griev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e with the information required on 13th March, 2015. The petitioner addressed a letter on 12th March, 2015 and pointed out that the communication dated 5th March, 2015 was received on 12th March, 2015, but no speaking order has been passed rejecting the objections and which is required by the law laid down in the case of GKN Driveshaft (India) Ltd. V/s. Income Tax Officer reported in (2003) 259 ITR 19 and Asian Paints Ltd. V/s. Deputy Commissioner of Income Tax & Anr. reported in (2009) 308 ITR 195 (Bom). The petitioner specifically invited the attention of the assessing officer to the directions in the case of Asian Paints (supra) and to the effect that if the assessing officer does not accept the objections to the reopening of the assessment or the reasons recorded, he shall not proceed further in the matter within a period of four weeks from the date of receipt or service of the said order on the assessee. Since the order dated 5th March, 2015 is stated to be rejecting the objections, then, the assessee prayed that for a period of four weeks from that order, no steps should be taken. 23. However, as has been rightly contended by Mr. Pardiwalla, ignoring this mandate in the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter four years from the end of the relevant assessment year it was incumbent upon the assessing officer to demonstrate that there was failure on the part of the assessee to fully and truly disclose all material facts necessary for its assessment. The purported reasons which we have extracted above do not even allege that there has been a failure on the part of the assessee to disclose any material fact. In fact, even in the impugned order dated 31.05.2012 there is no mention of what fact the assessee had failed to disclose which was necessary for the assessment in the original round of assessment. Failure to disclose all material facts necessary for assessment is a condition precedent for reopening of an assessment beyond the period of four years from the date of assessment. This is a pre-condition set out in the statute itself. 7. In view of the fact that this pre-condition has not been satisfied, we feel that the impugned notice dated 07.03.2012 as also the order dated 31.05.2012 ought to be set-aside. It is ordered accordingly. All the proceedings pursuant to the notice dated 27.03.2012 are quashed. The writ petition is allowed. There shall be no order as to costs. Consequentl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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