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TMI Blog2012 (4) TMI 248X X X X Extracts X X X X X X X X Extracts X X X X ..... dry Ltd. vs. DCIT, Circle 2 & Ors.(2012 (3) TMI 334 - BOMBAY HIGH COURT) – Decided in favor of assessee. - WRIT PETITION NO. 590 OF 2012 - - - Dated:- 30-3-2012 - DR.D.Y.CHANDRACHUD AND M.S.SANKLECHA, JJ. Mr. K. Gopal with Mr. Jitendra Singh and Mr. Satyendra Pandey, for the Petitioner. Mr.N.N. Singh, for the Respondents. JUDGMENT : (PER DR.D.Y.CHANDRACHUD,J). 1. Rule, by consent,made returnable forthwith. Counsel appearing on behalf of the Respondents waives service. By consent the Petition is taken up for hearing and final disposal. 2. The challenge in these proceedings is to a notice under Section 148 of the Income Tax Act, 1961 purporting to reopen the assessment for A.Y.2005-06. The original ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed under a letter dated 7 December 2011, the Petitioner submitted objections for reopening of the assessment on 12 December 2011. In terms of the decision of the Supreme Court in GKN Driveshafts (India) Ltd. vs. Income Tax Officer (2003 (259) ITR 19), we direct the Assessing Officer to dispose of the objections by a reasoned order within a period of four weeks from today. Until then, no steps shall be taken in pursuance of the notice dated 7 March 2011 and in the event that an adverse order is passed, for a further period of four weeks thereafter. The Petition is accordingly disposed of. The fact that this Court had passed its order on 23 December 2011 was intimated to the Assessing Officer by the Petitioner s Advocate on 27 December 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of your records for the year under consideration, melting loss claimed by you was found on higher side as compared to the rulings in that respect of the Hon ble Income-Tax Appellate Tribunal, Pune Bench, Pune, in their judgment passed in ITA No.696/PN/2006 for A.Y.2001-02 in the case of Saroj Castings Pvt.Ltd., Kolhapur. Normal allowable melting loss was ruled out at 5.5%, whereas, in your case it was claimed at 7.24%. In view of this fact, it was concluded, to the extent the assessment framed on 31/10/2006 has escaped the assessment by allowing excess claim of loss within the provisions of Sec.147 of the Act. In that case as well the reopening of the assssement was beyond four years. While allowing the Petition, this Court held as foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... verification of the records of the assessee for the year under consideration that the Assessing Officer came to the conclusion that the melting loss was found to be on a higher side. The decision of the Tribunal in the case of Saroj Castings, which has been adverted to in the order of the Assessing Officer dated 9 December 2011, was rendered on 30 May 2008. The Assessing Officer could not have reopened the assessment on the basis of this subsequent decision of the Tribunal unless the jurisdictional requirements in the proviso to Section 147 were fulfilled. Moreover, the order of the Tribunal in Saroj Castings, a copy of which has been produced on record by the counsel for the assessee, does not indicate that any general principle of law was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t order dated 30 December 2011 would have to be quashed and set aside. The present case stands on the same foundation 4. It would appear that the Assessing Officer passed an order of assessment on 30 December 2011 since the assessment was becoming time-barred on 31 December 2011 which was a Saturday. Though the website of the High Court disclosed that the earlier Petition had been disposed of as on 23 December 2011, it appears that the certified copy of the order was not made available until Saturday. Be that as it may, since the basis of the reopening of the assessment under Section 148 beyond a period of four years cannot be sustained, the consequential order of assessment would also have to be set aside. 5. Accordingly, we al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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