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2016 (12) TMI 1657 - AT - Income TaxValidity of reopening of assessment - non disposing of the assessee s objections against the notice u/s. 148 - Held that - CIT(A) by respectfully following the judgment of the Hon ble Supreme Court i.e. in the case of GKN Driveshafts India Ltd. 2002 (11) TMI 7 - SUPREME Court has rightly observed that AO has not passed the speaking order in disposing of the assessee s objections against the notice u/s. 148 of the I.T. Act, before proceeding with the assessment, hence, correctly held that the subsequent assessment order is bad in law and deserving of being quashed. CIT(A) also correctly observed that that reopening of the case has been held to be invalid as the same was done on the basis of the Valuation Report from the Valuation Officer which was obtained by an invalid reference and also since the AO proceeded with the assessment without disposing off the objections raised by the assessee to the notice u/s. 148 of the Act and accordingly he held that both the reopening of the case and the consequent assessment order are bad in law. - Decided in favour of assessee.
Issues Involved:
1. Legality of the reference to the AVO without rejecting the books of accounts. 2. Validity of reopening assessment based on the AVO's report. 3. Failure of the AO to dispose of objections before proceeding with the assessment. Issue-wise Detailed Analysis: 1. Legality of the reference to the AVO without rejecting the books of accounts: The Tribunal noted that the assessee maintained books of accounts for the construction and produced the ledger of the construction account along with supporting vouchers for verification. The AO did not point out any defect in these accounts. The Tribunal referenced the Supreme Court's decision in Sargam Cinema Ltd. Vs. CIT (2010) 328 ITR 513 (SC), which held that the assessing authority cannot refer the matter to the Departmental Valuation Officer (DVO) without first rejecting the books of accounts. Thus, the reference to the AVO without rejecting the audited construction account was deemed not maintainable in law. 2. Validity of reopening assessment based on the AVO's report: The Tribunal observed that the AVO's report could not be the basis for inferring the existence of escaped income to initiate proceedings under sections 147/148. The Tribunal cited the case of Dr. Arjun D Barad Vs. ITO 83 ITO 774 (Nag), where it was held that assessments reopened solely based on the AVO’s report were not validly initiated if the reference to the DVO was without jurisdiction. Additionally, the Tribunal noted that the AVO's report was prepared without considering the books of accounts and supporting documents, which were maintained and audited by the assessee. Hence, the reopening of the assessment based on the AVO's report was invalid. 3. Failure of the AO to dispose of objections before proceeding with the assessment: The Tribunal highlighted that the AO did not dispose of the objections raised by the assessee to the notice under section 148 before proceeding with the assessment, which violated the principles laid down by the Supreme Court in GKN Driveshafts India Ltd. 259 ITR 19 (SC). The Tribunal cited multiple judgments, including the Gujarat High Court's decision in MGM Exports vs. DCIT [2010] 23 DTR 356 (Guj), which quashed reassessment orders where the AO failed to pass a speaking order disposing of preliminary objections. Consequently, the Tribunal concluded that the subsequent assessment order was bad in law. Conclusion: The Tribunal upheld the CIT(A)'s decision, which deleted the addition of ?34,10,713/- as unexplained investment under section 69A. The Tribunal found that both the reopening of the case and the consequent assessment order were invalid due to the improper reference to the AVO, the invalid basis for reopening the assessment, and the AO's failure to dispose of objections before proceeding with the assessment. Therefore, the appeal filed by the Revenue was dismissed. Order: The appeal filed by the Revenue stands dismissed. Order pronounced in the Open Court on 26/12/2016.
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