2021 (3) TMI 586 - AT - Income Tax

Maintainability of appeal before the CIT(A) u/s 246A - interlocutory order disposing off objections filed by assessee against reopening of the concluded assessment u/s 147 - Appeal against the communication of rejection of objections raised for reopening of assessment - HELD THAT - it could be seen from the title heading of Section 246A of the Act that it provides for appealable orders before learned CIT(A) and as could be seen above that there are no clauses/sub-section within Section 246A of the Act which provides that an appeal can be filed by assessee against interlocutory order passed by the AO while disposing off objections filed by assessee against reopening of the concluded assessment u/s 147 of the Act. It is also not the case of the assessee that it is denying its liability to be assessed under the Act rather the assessee has voluntarily filed its return of income and offered its status to chargeability to tax as a trust and has paid taxes at the rates applicable for individual . In this bunch of fourteen appeals, wherever the liability to deposit tax was there keeping in view income offered to tax and rates as applicable to individual. The assessee had voluntarily come forward and deposited self assessment tax before filing its return of income with Revenue. Merely because objections raised by the assessee to reopening of the concluded assessment u/s 147 of the Act were disposed off by the AO does not mean that the assessee will be finally fastened with additions to income in its hand on merits. The assessee will always have an opportunity to appear before the AO during reassessment proceedings and raise objections on merits of the issue before any prejudice is caused to the assessee by way of adverse reassessment order to be passed u/s 147 read with Section 143(3) of the Act. The right to file an appeal with learned CIT(A) is a statutory right which emanates from the provisions of the Act and it could not be shown to us by the assessee that there existed any provision in the Act which enables it to file an appeal with learned CIT(A) against aforesaid interlocutory order. More so, the appellant is not remedy less as it will have any opportunity to file an appeal with learned CIT(A) u/s 246A of the Act in case reassessment proceedings culminates into an adverse order u/s 147 read with Section 143(3) of the Act. Appeal dismissed - Decided against the assessee.

Issues Involved:
1. Whether the appeal filed by the assessee is maintainable under section 246A of the Income Tax Act, 1961.
2. Whether the "speaking order" passed pursuant to the reopening of assessment is appealable under section 246A(1) of the Act.
3. The locus standi of the assessee to question the reopened proceedings under section 147.
4. Jurisdiction of the Assessing Officer (AO) and the Commissioner of Income Tax (Appeals) [CIT(A)] in the context of reopening assessments and issuing orders.
5. The applicability of the CBDT Circular No. 269 dated 29.04.1980 and its relevance to the case.
6. The relevance of the Supreme Court's decision in Genpact India Private Limited v. DCIT.
7. The procedural and substantive grounds for filing appeals against pre-assessment orders.

Detailed Analysis:

1. Maintainability of Appeal under Section 246A of the Act:
The primary issue is whether the appeal filed by the assessee against the rejection of objections to the reopening of assessment is maintainable under section 246A of the Income Tax Act, 1961. The Tribunal observed that section 246A provides for appealable orders before the CIT(A) and does not include interlocutory orders such as the rejection of objections to reopening of assessment. The Tribunal concluded that the appeal against the interlocutory order is not maintainable under section 246A of the Act.

2. Appealability of the "Speaking Order":
The Tribunal examined whether the "speaking order" passed by the AO, which rejected the objections to the reopening of assessment, is an order under section 147 appealable under section 246A(1) of the Act. The Tribunal held that the "speaking order" is not an order of assessment or reassessment under section 147 and, therefore, is not appealable under section 246A(1) of the Act. The Tribunal emphasized that only final orders of assessment or reassessment are appealable.

3. Locus Standi to Question Reopened Proceedings:
The Tribunal addressed the assessee's argument that it has the locus standi to question the reopening of proceedings under section 147. The Tribunal noted that the assessee has the right to challenge the reopening of assessment on jurisdictional grounds and merits after the reassessment order is passed under section 147 read with section 143(3) of the Act. The Tribunal clarified that the assessee can raise objections during the reassessment proceedings and appeal against the final reassessment order.

4. Jurisdiction of AO and CIT(A):
The Tribunal analyzed the jurisdictional aspects and held that the AO has the authority to reopen assessments under section 147, and the CIT(A) has the jurisdiction to entertain appeals against final reassessment orders. The Tribunal reiterated that interlocutory orders, such as the rejection of objections to reopening, do not fall within the ambit of appealable orders under section 246A.

5. Applicability of CBDT Circular No. 269:
The assessee relied on the CBDT Circular No. 269 dated 29.04.1980, which stated that pre-assessment orders are appealable. The Tribunal noted that the circular pertained to the erstwhile section 246 and not the amended section 246A. The Tribunal emphasized that the provisions of section 246A, inserted by the Finance No. 2 Act, 1998, w.e.f. 01.10.1998, do not provide for appeals against interlocutory orders.

6. Relevance of Genpact India Private Limited v. DCIT:
The assessee cited the Supreme Court's decision in Genpact India Private Limited v. DCIT to support its argument. The Tribunal distinguished the case by noting that in Genpact, the appeal was against a final assessment order under section 143(3) involving section 115QA, whereas in the present case, the appeal was against an interlocutory order. The Tribunal held that the Genpact decision does not apply to the present case.

7. Procedural and Substantive Grounds for Appeals:
The Tribunal addressed the procedural and substantive grounds for filing appeals against pre-assessment orders. The Tribunal concluded that the right to file an appeal is a statutory right emanating from the provisions of the Act. Since there is no provision in section 246A allowing appeals against interlocutory orders, the Tribunal held that the appeals filed by the assessees are not maintainable.

Conclusion:
The Tribunal dismissed the appeals filed by the assessees, holding that the appeals against the rejection of objections to the reopening of assessment are not maintainable under section 246A of the Income Tax Act, 1961. The Tribunal emphasized that only final reassessment orders are appealable, and the assessees can challenge the reopening of assessment and merits of the case after the reassessment order is passed. The Tribunal also clarified that the CBDT Circular No. 269 and the Genpact decision do not support the assessees' case.

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