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2017 (9) TMI 192 - HC - Income TaxValidity of reopening of assessment - Assessee was not given the copy of the reasons for issuing notice under Section 148 - procedure ought to be followed when the assessment is reopened - Held that - In the present case the assessments of AYs 1999-2000 onwards for five years are sought to be reopened. The offer to consider the Assessee s objections to the reopening and pass an order thereon is being made after nearly two decades. Having contested these proceedings for all these years the revenue is not fair in making this offer after all these year.Therefore, there was a clear violation of the procedure laid down by the Supreme Court in GKN Driveshaft (India) Limited v. ITO (2002 (11) TMI 7 - SUPREME Court). The Court respectfully concurs with the view of the Bombay High Court and holds that in the present case the ITAT was right in coming to the conclusion that on account of failure by the AO to furnish reasons for reopening of the assessment under Section 148 of the Act to the Assessee, the reassessment proceedings stood vitiated in law.It is mandatory for the AO to supply reasons for reopening the assessment and this has to be done within a reasonable time. See Haryana Acrylic Manufacturing Company v. The Commissioner of Income Tax IV 2008 (11) TMI 2 - DELHI HIGH COURT - Decided in favour of assessee.
Issues Involved:
1. Whether the ITAT was correct in holding that the failure of the Assessing Officer (AO) to provide the Assessee with the reasons for issuing a notice under Section 148 of the Income Tax Act, 1961, vitiated the entire assessment proceedings. Detailed Analysis: Background Facts: The Respondent-Assessee, a firm engaged in the business of film exhibition, did not file returns for the Assessment Years (AYs) 1999-00 to 2004-05 under Section 139(1) of the Income Tax Act, despite being a registered taxpayer. The Department discovered rental income from banks paid to the Assessee after tax deduction at source. Consequently, the AO issued a notice under Section 148 on 2nd September 2005 to reopen the assessments. Notice under Section 148: The AO recorded reasons for reopening the assessment and issued a notice to the Assessee to file returns within 30 days. The Assessee filed the returns after more than three months. Despite multiple requests, the AO did not furnish the reasons for reopening the assessments. The AO proceeded to pass reassessment orders on 22nd December 2006, making additions to the income from house property. Proceedings before the CIT (A): The Assessee appealed to the Commissioner of Income Tax (Appeals) [CIT (A)], arguing that the AO's failure to supply the reasons for reopening the assessment invalidated the proceedings, citing the Supreme Court's judgment in GKN Driveshafts (India) Limited v. ITO. The CIT (A) dismissed the appeals, noting that the Assessee did not follow up on the request for reasons and had ample opportunity to do so. The CIT (A) distinguished the case from previous ITAT decisions and held that the failure to furnish reasons was a procedural lapse that did not invalidate the reassessment proceedings. Impugned Order of the ITAT: The ITAT, referencing the Delhi High Court's decision in Haryana Acrylic Manufacturing Company v. The Commissioner of Income Tax and the Bombay High Court's decision in CIT v. Fomento Resorts and Hotels Limited, held that the failure to supply reasons for reopening the assessment vitiated the entire reassessment proceedings. Submissions of Counsel for the Revenue: The Revenue contended that the Supreme Court in GKN Driveshafts did not invalidate the entire assessment proceeding but allowed the Assessee to file objections to the reopening. The Revenue suggested that the Court could direct the reassessment proceedings to recommence from the stage of filing objections. The Revenue also argued that the case differed from GKN Driveshafts and Haryana Acrylic because the Assessee had not filed returns for the relevant AYs, justifying the AO's reason to believe that income had escaped assessment. Submissions on Behalf of the Assessee: The Assessee's counsel argued that the law mandates the supply of reasons for reopening the assessment, and failure to do so invalidates the reassessment proceedings. Analysis and Reasons: The Court examined the procedure outlined in GKN Driveshafts, which mandates that the AO must furnish reasons for reopening the assessment within a reasonable time and dispose of any objections by passing a speaking order before proceeding with the reassessment. The Court noted that the failure to provide reasons was not a mere procedural lapse but a significant violation that could not be rectified years later by offering to consider objections. Conclusion: The Court concluded that the ITAT was correct in holding that the AO's failure to furnish reasons for reopening the assessment vitiated the reassessment proceedings. The Court dismissed the Revenue's appeals, stating that no substantial question of law arose for consideration.
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