2021 (4) TMI 1043 - HC - Income Tax

Reopening of assessment u/s 147 - as per assessee proposal for reopening the assessment is liable to be dropped, since there is no finding that there was escapement of income - also contended that for the purpose of carrying on verification exercise, reopening cannot be ordered - HELD THAT - Though such specific contention was raised, instead of dealing with the same, by passing a speaking order, the first respondent chose to merely inform the assessee that the proceedings have been initiated only with the approval of the jurisdictional Joint Commissioner. The first respondent has not at all dealt with the contentions raised by the assessee. The Hon'ble Supreme Court in GKN Driveshafts 2002 (11) TMI 7 - SUPREME COURT had specifically held that the assessing officer is bound to dispose of the assessee's objections by passing a speaking order. In as much as this requirement of law as laid down by the Supreme Court has not been complied with, the respondent is directed to dispose of the petitioner's objections by passing a speaking order within a period of four weeks from the date of receipt of a copy of this order. We refrain from interfering with the impugned notices. If the assessing officer chooses to reject the petitioner's objections by passing a speaking order, then, it is open to the petitioner herein to move this Court again. All the contentions of the petitioner are left open.

Summary

Issues:
1. Reopening of assessment under Section 148 of the Income Tax Act based on a survey conducted.
2. Justification for the initiation of the impugned proceedings.
3. Compliance with legal requirements for issuing notices and disposing of objections.

Analysis:

Issue 1: Reopening of assessment under Section 148
The petitioner, a Doctor, filed returns of income for different assessment years, which were accepted. However, a survey under Section 133A of the Income Tax Act at a hospital premises led to a notice under Section 148 for reopening the assessments. The petitioner raised objections stating that the reasons recorded did not indicate any income escapement but were for transaction verification. The respondent contended that necessary approval was obtained for reopening. The petitioner challenged the notices through writ petitions.

Issue 2: Justification for the initiation of proceedings
The respondent filed a detailed counter affidavit justifying the initiation of the impugned proceedings. The petitioner's counsel cited legal provisions and case laws to argue against the reopening, emphasizing the time limit for issuing notices under Section 143(2) of the Act. The respondent's counsel relied on Supreme Court and High Court decisions to support the initiation of proceedings and advised against rushing to court at the notice stage.

Issue 3: Compliance with legal requirements
The petitioner's counsel highlighted that reasons for reopening indicated no income escapement and objected to the lack of a response from the first respondent as mandated by a Supreme Court judgment. Referring to the GKN Driveshafts case, the court emphasized the need for the assessing officer to dispose of objections by passing a speaking order. The court directed the respondent to address the petitioner's objections within four weeks and refrained from interfering with the notices, leaving all contentions open for future review.

In conclusion, the court disposed of the writ petitions with a direction for the respondent to address the petitioner's objections by passing a speaking order within a specified period. The court emphasized compliance with legal requirements for issuing notices and disposing of objections, as outlined in relevant case laws and judgments.