2017 (11) TMI 2005 - AT - Income Tax

Reopening of assessment u/s 147 - assessee objecting to the reopening on the reasons recorded u/s. 148(2) - HELD THAT - Assessee s objection after going through the reasons recorded for reopening, was not done at all by the AO before passing the reassessment order which is per se against the binding direction in GKN Driveshaft (India) Ltd. 2002 (11) TMI 7 - SUPREME COURT wherein their Lordships held that on receipt of reasons, the noticee is entitled to file objection to issuance of the notice and the AO is bound to dispose of the same by passing a speaking order. In the instant case, a perusal of the order sheet of AO does not disclose that AO had disposed of the objection raised by the assessee by passing a speaking order. We note that the assessee vide letter had in fact objected to the reopening of filing six pages letter and this fact is corroborated by the AO himself in the order sheet maintained by him and we note that the AO has not passed any speaking order to dispose of the objection raised by the assessee. As per Article 141 of the Constitution of India, the Hon ble Supreme Court s direction is bound to be acted upon by the courts and other authorities. The AO has not cared to dispose of the objections raised by the assessee as directed by the Hon ble Supreme Court. As stated above, from the order sheet entries it is very clear that the AO did not dispose of the objection of the assessee as directed in GKN Driveshaft (India) Ltd. 2002 (11) TMI 7 - SUPREME COURT which makes the reassessment order bad in the eyes of law and is non-est in the eyes of law for flouting the order of the Hon ble Supreme Court. Appeal of assessee is allowed.

Issues:
1. Additional ground of appeal regarding objection to reopening proposed by AO under section 147/148 of the Income-tax Act, 1961.
2. Failure of the AO to dispose of the objection raised by the assessee as per the decision of the Hon'ble Supreme Court in GKN Driveshaft (India) Ltd. case.
3. Admittance of additional ground by the ITAT based on legal issue.
4. Non-compliance with the directions of the Hon'ble Supreme Court leading to the reassessment order being considered bad in the eyes of the law.

Issue 1: Additional Ground of Appeal
The appeal filed by the assessee was against the order of Ld. CIT(A)-XX, Kolkata for AY 2008-09. The assessee raised an additional ground regarding objection to the reopening proposed by the AO under section 147/148 of the Income-tax Act, 1961. The Ld. DR objected to the admission of the additional ground, claiming it was a legal issue. However, the ITAT, relying on the decision of the Hon'ble Supreme Court in the case of NTPC Ltd., admitted the additional ground, emphasizing its importance in the matter.

Issue 2: Failure to Dispose of Objection
The Ld. AR highlighted that the assessee had objected to the reopening on the reasons recorded under section 148(2) of the Act. The objection was clearly documented in a letter to the AO. Despite the objection running to six pages and the AR requesting the AO to address it before proceeding with reassessment, the AO failed to dispose of the objection as per the binding decision of the Hon'ble Supreme Court in GKN Driveshaft (India) Ltd. case. The AO's failure to comply with the Supreme Court's direction rendered the reassessment order legally flawed and non-est in the eyes of the law.

Issue 3: Admittance of Additional Ground
The ITAT reviewed the objection raised by the assessee against the reopening and noted that the AO did not address it before passing the reassessment order. The failure to dispose of the objection was a clear violation of the direction given by the Hon'ble Supreme Court in GKN Driveshaft (India) Ltd. case. The ITAT, in line with legal principles, admitted the additional ground based on the legal issue, emphasizing its significance in determining the validity of the reassessment.

Issue 4: Non-Compliance with Supreme Court Directions
The failure of the AO to dispose of the objection raised by the assessee in accordance with the Hon'ble Supreme Court's directive in GKN Driveshaft (India) Ltd. case was a critical flaw in the reassessment process. The ITAT concluded that the reassessment order was bad in the eyes of the law due to the AO's non-compliance with the Supreme Court's directions. As per Article 141 of the Constitution of India, the directions of the Supreme Court must be followed by all courts and authorities. Consequently, the appeal of the assessee was allowed, highlighting the importance of adhering to legal procedures and judicial directives.

This detailed analysis of the judgment highlights the key issues raised in the appeal and the ITAT's decision based on legal principles and compliance with the Hon'ble Supreme Court's directives.

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