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TMI Blog2024 (7) TMI 405X X X X Extracts X X X X X X X X Extracts X X X X ..... th the consent of the learned advocates for the parties, the matter is taken up for hearing. 5. By this petition filed by the petitioner-Shri K.J. Koteha Charitable Trust, challenged the notice issued under section 148 of the Income Tax Act, 1961 [for short 'the Act'] as under: SCA No Notice U/s 148 issued on For the assessment Year 14769/2021 31.03.2020 2016-17 14776/2021 31.03.2020 2013-14 14777/2021 19.03.2020 2015-16 6. The petitioner has also challenged the assessment Order dated 24.09.2021 passed under section 147 read with section 144B of the Act in all the three assessment years. 7. Brief facts of the case are as under: 7.1 The petitioner is a Charitable Trust running a primary school and play school from the past 36 years. The petitioner is also running a community hall for wedding and cultural programmes and carrying on other charitable activities for poor conducting various medical camps etc. The Central Process Unit, Bangalore, while processing return of income of the petitioner for Assessment Year 2014-15 had denied the claim of deduction under section 24 (a) of the Act and the petitioner paid the demand. The petitioner has also claimed such deduction f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not passing order disposing of the objections and straightaway framing the assessment, the Assessing Officer has deprived the petitioner to challenge the issuance of notice at that stage. Reliance was placed on the decision of this Court in case of Ashish Bohra vs. Income Tax Officer reported in (2021) 129 taxmann.com 52 wherein it is held that order disposing of the objection must deal with objection raised. Reliance was also placed on the case of Bharatmaiya Memorial Foundation reported in (2018) 91 Taxmann.com 25 Guj. wherein it is held that order disposing of objection is must even when the objections are filed belatedly. Learned advocate Mr. Soparkar also referred to and relied upon the following decisions: * Simaben Vindorai Ravani vs. Income Tax Officer reported in [2017] 394 ITR 778(Guj.) "[6.0] Heard learned Counsel appearing for respective parties at length. At the outset it is required to be noted that the impugned notice under section 148 of the Act to reopen the assessment for AY 200910 was issued by the Assessing Officer on 29.03.2016. That the assessee asked the reasons recorded to reopen the assessment which came to be supplied / furnished by the Assessing O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... objections is still against the assessee, the assessee will get an opportunity to challenge the same by filing a writ petition so that he does not have to wait till completion of the reassessment proceedings which would have entailed the liability to pay tax and interest on reassessment and also to go through the gamut of appeal, the second appeal before Incometax Appellate Tribunal and then reference / tax appeal to the High Court. Viewed in this light, it appears to me that the rigour of availing of the alternative remedy before the Assessing Officer for objecting to the reassessment notice under section 148 has been considerably softened by the Apex Court in G.K.N. case (2003) 259 ITR 19 in the year 2003. In my view, therefore, the G.K.N. case (2003) 259 ITR 19 (SC) does not run counter to the Calcutta Discount Co. Ltd. case (1961) 41 ITR 191 (SC) but it merely provides for challenge to the reassessment notice in two stages, that is:- i) raising preliminary objections before the Assessing Officer and in case of failure before the Assessing Officer, ii) challenging the speaking order of the Assessing Officer under section 148 of the Act (p.87)." [6.2] In the case of Arv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer to give reasonable time to the petitioner which shall not be less than two months from the date of disposing of the objections (in case the Assessing Officer overrules the objections raised by the petitioner by a speaking order). However, it is made clear that we have not expressed anything on merits and the impugned assessment order has been set aside solely on the aforesaid ground and for the reasons stated above. Rule made absolute to the aforesaid extent. In the facts and circumstances of the case, more particularly when the Assessing Officer has not followed the binding decisions of the Hon'ble Supreme Court as well as Full Bench and Division Bench of this Court referred to hereinabove and has passed the reassessment order without dealing with and/or disposing of the objections raised by the petitioner, the petition is allowed with cost which is quantified at Rs. 5000/, which shall be deposited by the concerned Officer with the Registry of this Court, within a period of 3 weeks from today. On such deposit the Registry is directed to transmit the same to Gujarat State Legal Services Authority." * Pr. Commissioner of Income Tax vs. Sagar Developers reported in [2016] 72 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould stand set aside it would be open for the Assessing Officer to frame fresh assessment after first disposing of the objections of the assessees. Needless to clarify the provisions for time limit for framing the assessment as may be applicable would apply." 8.1 It was submitted that reasons recorded are factually incorrect and therefore, are invalid ab initio inasmuch as the petitioner has not availed any deduction under section 24 (a) of the Act which is now proposed to be disallowed. It was pointed out that the reasons recorded are factually incorrect and are recorded without application to mind as if it disallowed something which is already stands allowed. It was therefore submitted that assumption of jurisdiction is therefore fundamentally bad and illegally. 8.2 It was pointed out that the claim of the assessee for deduction under section 24 (a) of the Act has now been disallowed in the intimation issued under section 143(1) and it does not amount to any income having escaped assessment and the total income of the assessee would not undergo any challenge. In respect of his submissions reliance was placed on the following decisions: * Ganga Saran & Sons (P.) Ltd [1981] 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax Act, 1961. The High court took the view that the appellant could have taken all the objections in its reply to the notices and that, at that stage, the writ petition was premature. Accordingly, the writ petition was dismissed on 31st January, 2001. Aggrieved by that order, the appellant is in appeal before us. Xxx [5] We see no justifiable reason to interfere with the order under challenge. However, we clarify that when a notice under section 148 of the Income Tax Act is issued, the proper course of action for the noticee is to file return and if he so desires, to seek reasons for issuing notices. The assessing officer is bound to furnish reasons within a reasonable time. On receipt of reasons, the notice is entitled to file objections to issuance of notice and the assessing officer is bound to dispose of the same by passing a speaking order. In then instant case, as the reasons have been disclosed in these proceedings, the assessing officer has to dispose of the objections, if filed, by passing a speaking order, before proceeding with the assessment in respect of the above said five assessment years." 12. In view of the above decisions, it is mandatory on part of the re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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