2017 (2) TMI 1115 - HC - Income Tax

Reopening of assessment - validity of notice - Held that - We are of the view that as the petitioner has not come to this Court with clean hands, this petition cannot be entertained. There is no reason for us to disbelieve the affidavit filed by the Assessing Officer dated 8th February, 2017 in the absence of any affidavit disputing the above facts. However, considering the fact that the deponent to the petition is 76 years old, we have not examined the issue of imposing of costs. The contention urged by Mr. Andhyarujina on behalf of the petitioner across the bar would give rise to disputed question of fact and thus outside the pale of writ jurisdiction. Thus we dismiss the petition. We now take up the direction issued by us to the Assessing Officer by our order dated 25th January, 2017. Shri Ahire, in his affidavit has stated assessment was getting time barred on 31st December, 2016. The notice for re-opening is dated 30th March, 2016. The reasons recorded in support of the impugned notice are served upon the petitioner on 14th October, 2016. The petitioners filed its objection to the reason only on 19th December, 2016. Thus in the above facts, we find that the undue delay on the part of the petitioner in objecting to the reasons, made it impossible in the present facts to give time to the petitioner in accord with the decision of this Court before passing an Assessment Order under Section 143(3) of the Act on 28th December, 2016.

Summary

Issues:
Challenge to notice under Section 148 of the Income Tax Act, 1961 for re-opening Assessment Year 2010-11 and order under Section 143(3) read with Section 147 for the same year.

Analysis:
The petition challenges a notice under Section 148 of the Income Tax Act, 1961, seeking to re-open the Assessment for the year 2010-11 and an order passed under Section 143(3) read with Section 147 for the same year. The petitioner raised objections to the reasons recorded in support of the notice, citing legal precedents that a reassessment should not be initiated for four weeks after the disposal of objections. Despite this, the Assessing Officer passed the impugned order on 28th December, 2016, prompting the petitioner to approach the court. The court directed the Assessing Officer to explain his conduct and stay the re-opening notice and the order until further orders.

The respondent Revenue argued that a notice dated 14th October, 2016, was served upon the petitioner, which the petitioner denied receiving. The Assessing Officer provided evidence of the notice being served and the petitioner's acknowledgment. The petitioner, however, did not file a rejoinder affidavit to dispute these facts. The court noted the lack of clean hands on the petitioner's part and dismissed the petition, emphasizing that the petitioner had not contested the facts presented by the Assessing Officer.

The court further addressed the delay in the petitioner objecting to the reasons recorded for re-opening the assessment. The petitioner's objections were filed late, making it impossible to provide the petitioner with the required time before passing the Assessment Order on 28th December, 2016. Consequently, the court held that the precedents cited by the petitioner did not apply in this case, leading to the dismissal of the petition without any order as to costs.

In conclusion, the court dismissed the petition challenging the re-opening of the assessment for the year 2010-11 and the subsequent order, citing the petitioner's delay in objecting to the reasons recorded for re-opening. The court emphasized the importance of timely objections in such matters and upheld the Assessing Officer's actions in this case.