2017 (11) TMI 1915 - HC - Income Tax

Reopening of assessment - Non addressing preliminary objections - tribunal has upheld the contention of the appellant and remitted back the matter for reassessment - second inning to the Assessing Officer who has to do reassessment within a period of 9 months - unexplained cash credit u/s 68 - HELD THAT - It is not out of place to mention that the law declared by the Supreme Court in GKN Driveshafts 2002 (11) TMI 7 - SUPREME COURT clearly held that the preliminary objection is to be decided as the first it cannot be decided subsequently. The argument which has been canvassed by the assessee is required to be considered very seriously more particularly in view of the observations made by the Supreme Court in the case of KSS Petron Private Ltd 2016 (10) TMI 1112 - BOMBAY HIGH COURT which is followed in Hotel Blue Moon 2010 (2) TMI 1 - SUPREME COURT the law declared by the Supreme Court is taken in true spirit whether it will open a second inning in his own. Section 153(3) is to be read very cautiously as 153 powers are given to the Department the Court has to look into whether the law declared by the Supreme Court is given away or protected. In the present case as the Assessing Officer has clearly ignored the law declared by the Supreme Court in that view of the matter the issues which are raised in the matter the Tribunal ought not to have remitted back for reassessment since period of limitation has already expired as the authority will get extended time of limitation beyond 9 months which is not the object of the Income Tax Act.

Issues Involved:
1. Whether the Tribunal was justified in not declaring the reassessment proceedings and the consequential assessment order as nullity.
2. Whether the Tribunal committed a grave legal error in setting aside the entire quantum proceedings.

Issue-Wise Detailed Analysis:

1. Justification of Reassessment Proceedings and Consequential Assessment Order as Nullity:
The appellant challenged the Tribunal's decision, which upheld the reassessment proceedings initiated under Section 148 of the Income Tax Act, 1961, and the consequential assessment order. The reassessment was based on the addition of Rs. 47,00,000 as unexplained cash credit under Section 68 of the Act. The appellant argued that the reassessment proceedings were invalid as the Assessing Officer (AO) did not dispose of the objections before finalizing the assessment, contrary to the procedure mandated by the Supreme Court in GKN Driveshafts (India) Ltd. v. ITO. The Tribunal's failure to declare the reassessment proceedings null and void was contended as a legal error.

2. Error in Setting Aside the Entire Quantum Proceedings:
The appellant argued that the Tribunal's decision to remit the matter back for reassessment provided the AO with extended time beyond the statutory limitation period, which was against the object of the Income Tax Act. The appellant relied on several judgments, including KSS Petron Private Ltd. vs. The ACIT and Hotel Blue Moon, which emphasized the necessity of disposing of objections before proceeding with reassessment. The appellant contended that remitting the matter back would lead to unnecessary harassment and revival of stale matters, contrary to the principles laid down by the Supreme Court.

Detailed Analysis:

1. Justification of Reassessment Proceedings and Consequential Assessment Order as Nullity:
The court examined the procedural requirements for reassessment under Section 148, emphasizing the necessity for the AO to dispose of the assessee's objections by passing a speaking order before proceeding with the reassessment. The court referred to the Supreme Court's decision in GKN Driveshafts (India) Ltd., which mandates that the AO must first dispose of the objections raised by the assessee against the notice for reassessment. The court noted that failure to follow this procedure renders the reassessment proceedings invalid. The appellant's contention was supported by various judgments, including General Motors India (P) Ltd. vs. Deputy Commissioner of Income Tax and Ferrous Infrastructure Pvt. Ltd. vs. Deputy Commissioner of Income Tax, which reiterated the requirement for the AO to pass a speaking order on the objections before finalizing the reassessment.

2. Error in Setting Aside the Entire Quantum Proceedings:
The court analyzed the Tribunal's decision to remit the matter back for reassessment and its implications on the statutory limitation period. The appellant argued that remitting the matter back would provide the AO with an extended time beyond the statutory limitation, which is not in line with the object of the Income Tax Act. The court referred to the Supreme Court's decision in KSS Petron Private Ltd., which held that once the assessment order is found to be without jurisdiction, there is no reason to restore the issue to the AO for fresh adjudication. The court also referred to the decision in Hotel Blue Moon, which emphasized that the AO must follow the procedure laid down by the Supreme Court in GKN Driveshafts (India) Ltd. before proceeding with the reassessment. The court concluded that the Tribunal's decision to remit the matter back for reassessment was contrary to the principles laid down by the Supreme Court and resulted in unnecessary harassment of the assessee.

Conclusion:
The court held that the reassessment proceedings and the consequential assessment order were null and void as the AO did not dispose of the objections before finalizing the reassessment. The court also held that the Tribunal committed a grave legal error in setting aside the entire quantum proceedings and remitting the matter back for reassessment, as it provided the AO with an extended time beyond the statutory limitation period. The appeal of the assessee was allowed, and the reassessment order passed by the Tribunal was declared null and void. The questions were answered in favor of the assessee and against the Department.

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