9911796707
TMI Blog2015 (5) TMI 871X X X X Extracts X X X X X X X X Extracts X X X X ..... he notice under Section 148 and proceedings pursuant thereto are without authority of law. In the present case, it is evident that the reasons were recorded only on 18.09.2012, i.e., after the notice under Section 148 had been issued on 30.08.2012. Clearly, the statutory provisions, as explained by judicial decisions, indicate that the notice under Section 148 would be invalid and consequently all proceedings pursuant thereto would also be vitiated. Assessing Officer has to pass a speaking order disposing of the objections “before proceeding with the assessment”. In the present case, a separate speaking order has not been passed and the objections have been dealt with, if at all, in the re-assessment order itself. On this ground also, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment order dated 30.03.2014. He submitted that this was in clear contradiction to the Supreme Court decision in the case of G.KN Driveshafts (India) Ltd. v. ITO : 259 ITR 19(SC). 3. The counter-affidavit has been filed on behalf of the Revenue and a very surprising stand has been taken. In reply to paragraph No.1 of the petition on merits, the counter-affidavit reads as under:- 1. With respect to the content of Paragraph no. 1 it is respectfully submitted that the factual position in the matter is that the notice u/s.148 of the Act dated 30.08.2012 was issued and duly served upon the assessee company. The notice u/s.148 was issued after recording the reasons for issuance of notice u/s.l48 however, in the lower portion of the reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ready been issued on 30.08.2012. It is evident that the notice was issued prior to the recording of the reasons. Section 148(2) of the Income-Tax reads as under:- 148. (2) The Assessing Officer shall, before issuing any notice under this section, record his reasons for doing so. It is absolutely clear from the said provision that the Assessing Officer is required to record his reasons before he issues the notice under Section 148. 4. This aspect has been dealt with by a Division Bench of this Court in Haryana Acrylic Manufacturing Co. v. Commissioner of Income-tax: 308 ITR 38(Delhi). 32. Secondly, let us assume for the sake of argument that the actual reasons were those as noted in the said form. Then why did the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ory requirement by directing that the reasons which are recorded be communicated to the assessee within a reasonable period of time so that at that stage itself the assessee may point out any objections that he may have with regard to the initiation of action under Section 147 of the said Act. The requirement of recording the reasons, communicating the same to the assessee, enabling the assessee to file objections and the requirement of passing a speaking order are all designed to ensure that the Assessing Officer does not reopen assessments which have been finalized on his mere whim or fancy and that he does so only on the basis of lawful reasons. These steps are also designed to ensure complete transparency and adherence to the principles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not the question before us. The only question here is whether reasons could at all be recorded after issuance of the notice under Section 148 of the Act. And, secondly, that as the reasons were recorded after the issuance of Section 148 notice, whether the proceedings were not vitiated. 7. We have seen from the provisions of Section 148(2) as also the decisions of this Court in Haryana Acrylic(supra), and that of the Karnataka High Court in Baldwin Boys High School (supra), that the reasons have to be recorded prior to the issuance of notice under Section 148. If they are not so recorded, then the notice under Section 148 and proceedings pursuant thereto are without authority of law. In the present case, it is evident that the reasons we ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
