2015 (5) TMI 871 - HC - Income Tax

Reopening of assessment - absence of reasons recorded prior to the issuance of notice under Section 148 and the objections furnished by the petitioners to the Section 148 notice had not been disposed of by a separate speaking order prior to the re-assessment order - Held that - As seen from the provisions of Section 148(2) as also the decisions of this Court in Haryana Acrylic(2008 (11) TMI 2 - DELHI HIGH COURT), and that of Baldwin Boys High School (2015 (2) TMI 806 - KARNATAKA HIGH COUR), that the reasons have to be recorded prior to the issuance of notice under Section 148. If they are not so recorded, then the notice under Section 148 and proceedings pursuant thereto are without authority of law. In the present case, it is evident that the reasons were recorded only on 18.09.2012, i.e., after the notice under Section 148 had been issued on 30.08.2012. Clearly, the statutory provisions, as explained by judicial decisions, indicate that the notice under Section 148 would be invalid and consequently all proceedings pursuant thereto would also be vitiated. Assessing Officer has to pass a speaking order disposing of the objections before proceeding with the assessment . In the present case, a separate speaking order has not been passed and the objections have been dealt with, if at all, in the re-assessment order itself. On this ground also, the petitioner is liable to succeed. See GKN Driveshafts 2002 (11) TMI 7 - SUPREME Court - Decided in favour of assesse.

Summary

Issues:
1. Validity of notice under Section 148 of the Income Tax Act, 1961.
2. Compliance with the requirement of recording reasons before issuing notice under Section 148.
3. Disposal of objections by passing a speaking order before re-assessment.

Analysis:
1. The writ petition challenged a notice dated 30.08.2012 issued by the DCIT, Circle 11(1), New Delhi, under Section 148 of the Income Tax Act, 1961, and the subsequent re-assessment order dated 30.03.2014 for the Assessment Year 2008-2009.
2. The petitioners contended that reasons for initiating reassessment were recorded after issuing the notice under Section 148, contrary to the legal requirement that reasons must be recorded before issuing such notice. They also argued that their objections to the notice were not disposed of separately before the re-assessment order, citing a Supreme Court decision.
3. The Revenue's counter-affidavit claimed that the notice was issued after recording reasons, but discrepancies in the recorded date of reasons raised doubts. The court found that the reasons were recorded after the notice was issued, violating Section 148(2) of the Income Tax Act, which mandates recording reasons before issuing the notice.
4. Citing precedents like Haryana Acrylic case, the court emphasized the importance of recording reasons before issuing notice under Section 148 to ensure transparency and adherence to natural justice principles. The Karnataka High Court's decision in Baldwin Boys High School case further supported the requirement of recording reasons before issuing such notices.
5. The court dismissed the relevance of a cited case and reiterated that reasons must be recorded before issuing notices under Section 148. Failure to do so renders the notice and subsequent proceedings invalid, as per statutory provisions and judicial interpretations.
6. Additionally, the court noted that the Assessing Officer failed to pass a speaking order disposing of objections before re-assessment, as directed by the Supreme Court in GKN Driveshafts case. This non-compliance further supported the petitioners' case for quashing the notice and subsequent proceedings.
7. Consequently, the court allowed the petition, quashing the notice dated 30.08.2012 and all proceedings stemming from it, including the re-assessment order dated 30.03.2014, based on the violations of legal requirements and precedents cited during the case.