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TMI Blog2015 (2) TMI 862X X X X Extracts X X X X X X X X Extracts X X X X ..... ithout jurisdiction and the action cannot stand in the eye of law. As decided in the case of General Motors India (P) Ltd. (2012 (8) TMI 714 - GUJARAT HIGH COURT) if the objections are not decided to the reasons for opening of reassessment and the department has proceeded for reassessment, the assessee would be well within his right to invoke the jurisdiction of this Court under Article 226 of the Constitution. As the mandatory procedure is not followed for disposal of the objection before proceeding with reassessment, initiation of the action as well as the subsequent order for reassessment would be required to be quashed. - Reassessment quashed - Decided in favour of assessee. - Special Civil Application No. 18622 of 2014 - - - Dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , learned counsel appearing for the respondent. 4. The learned counsel for the petitioner relied upon the decision of this Court in case of General Motors India (P) Ltd. V/s. Deputy Commissioner of Income Tax reported in (2013) 354 ITR 244 (Guj) and contended that the case of the petitioner is directly covered by the said decision inasmuch as, after the reasons were supplied to the petitioner, the objections were filed by the petitioner but, such objections were not considered nor disposed of. It was submitted that the A.O. proceeded for reassessment and the reassessment order has been passed. He submitted that similar were the fact situations in the decision of this Court in case of General Motors India (P) Ltd. (supra) and, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... position to show that whether any true and correct facts were not disclosed which lead to reopening of the assessment, even for claim of depreciation. 7. We may record that this Court today, in Special Civil Application No.18004 of 2014, had an occasion to consider the question of bar operating to the action under Section 147 of the Act and it was observed thus:- 1. Rule. Mr. Mehta, learned Standing Counsel, waives notice of Rule. The matter is finally heard with the consent of the learned advocates appearing for both the sides. 2. The only question which may arise for consideration in the present matter is Whether the bar of four years provided by first proviso of section 147 of the Income Tax Act can be made applicable to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the order, whereby the objections filed by the petitioner were disposed of and the notice for reopening of the assessment was maintained. Under the circumstances, the present petition before this Court. 5. We have heard Mr.J.P. Shah, learned counsel appearing with M.J.Shah for the petitioner and Mr. Sudhir Mehta, for the respondent Revenue. 6. As such, apart from the aspect as to whether income escaped assessment, we find that one of the major point which may go to the root of the matter is the bar operating on the power of Revenue to reopen the assessment after the expiry of the period of four years from the end of the relevant assessment year. Section 147 of the Act upto first proviso which is relevant for the purpose of this pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action shall be taken under this section (147) after the expiry of the period of four years from the end of the relevant assessment year, unless any income chargeable to tax has escaped assessment for such assessment year by the reason of failure on the part of assessee to disclose full and truly all material facts necessary for assessment for the respective assessment year. 8. The aforesaid shows that unless the case falls in the exceptional category of failure to disclose fully and truly all material facts necessary for the assessment , the action after the expiry of four years for reopening of the assessment is not permissible. As we are not required to examine other contingencies of failure, we do not deal with the same. 9. As p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. Once the bar operates upon the power by express statutory provision, the action can be said as without jurisdiction. If the action of issuance of notice is without jurisdiction, it would be a case for interference under Article 226 of the Constitution. 12. In view of the above, we find that the impugned action under section 147 of the Act and consequently issuance of notice under section 148 of the Act (Annexure-E) including disposal of the objection dated 10.10.2014 (Annexure-I) may not stand in the eye of law. Hence, they are quashed and set aside. 13. The petition is allowed to the aforesaid extent. Rule made absolute accordingly. Considering the facts and circumstances, no order as to costs. 8. In our view, when even as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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