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TMI Blog2017 (8) TMI 327X X X X Extracts X X X X X X X X Extracts X X X X ..... - - - Dated:- 19-4-2017 - SHRIN.K. SAINI ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA,JUDICIAL MEMBER For The Assessee : Sh. P.C. Yadav, Advocate For The Revenue : Sh. Anil Sharma, Sr. DR ORDER PER AMIT SHUKLA, JUDICIAL MEMBER: The aforesaid appeal has been filed by the assessee against impugned order dated 19.3.2011, passed by the ld. CIT (Appeals) - XXVI,New Delhi for the quantum of assessment passed u/s 254 r.w.s.147/143(3) for the A.Y. 1999-2000. The assessee has raised following grounds:- 1.That the order passed u/s. 147/143(3) of the I.T. Act, 1961 is bad on facts and in law and requires to be annulled. 2. That the Ld.CIT (A) failed to appreciate that the provisions of section 148 of the I.T. Act, 1961 do not apply to the facts of the case and that the Assessing Officer has wrongly assumed jurisdiction without satisfying the primary requirement of reasons to believe that the income has escaped assessment. 3. That the Assessing Officer having considered the bank account of the appellant maintained with Vaish Co-Operative Adarsh Bank Limited (A/c. No. 999) in the block assessment proceedings and having passed a speaking order without m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bjection raised by the assessee against the validity of re-assessment proceedings.The AO should pass necessary order as per law in this regard after provided adequate opportunity of being head to the assessee. Regarding the merit of additions made by the AO, we feel that the same should also be decided by the AO afresh after providing adequate opportunity of being head to the assessee because it was the objection of the LD. AR. of the assessee before us that adequate opportunity was not provided by the AO and-since the matter is going back to the file of the AO for a fresh decision on the legal issue regarding validity or re-assessment proceedings, the factual aspect should also be decided by him afresh it he finds that the assessee does not have any case on legal issue. We direct the AO accordingly. He should pass necessary order as per law on merit also as per above discussion after provided adequate opportunity of being heard to the assessee. Now despite categorical direction by the Hon ble Tribunal the Assessing Officer has again failed to dispose off the assessee s objection and has reiterated the same addition which was made in the original assessment order. The Learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of law of disposing off assessee s objection. The Ld. DR had strongly contented that, since assessee did not responded to any of the notices by the AO, therefore, AO is justified in his approach. Such a contention cannot be upheld, because even if the assessee had not complied with notices in the set aside proceedings, however the Assessing Officer was legally bound to dispose off the objections which was filed earlier in response to notice u/s 148 and was there on assessment records before him as per the directions of the Tribunal. Such non-compliance of direction of Tribunal and also noncompliance of the law laid down by the Hon ble Apex Court, only leads to vitiating of the entire reassessment proceedings. It is well settled law that the reopening of the assessment u/s 147 and issuance and service of notice u/s 148 is a jurisdictional matter and whenever such a jurisdiction is challenged, then it is incumbent upon the Assessing Officer to pass an order either rejecting the assessee s objection or drop the proceedings in case he agrees with such an objections. This is a clear mandate of the law laid down by the Hon ble Apex Court which has been well explained by Hon ble Juris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laid down in this regard by the Hon'ble Supreme Court in the case of G.K.N. Drive Shaft (India) Ltd. vs. ITO (supra) along with other decisions have been discussed by the Hon'ble Gujarat High Court in the case of General Motors India (P) Ltd. vs. DCIT (supra) and the Hon'ble High Court after detailed deliberation has come to the following conclusions: 23. From the aforesaid decision, we are of the considered opinion that writ petition under Article 226 of the Constitution of India is maintainable where no order has been passed by the Assessing Officer deciding objection filed by the assessee under sec. 148 of the Act and assessment order has been passed or the order deciding an objection under sec. 148 of the Act has not been communicated to the assessee and assessment order has been passed or the objection filed under sec. 148 has been decided along with the assessment order. If the objectionunder sec. 148 has been rejected without there being any tangible material available with the Assessing Officer to form an opinion that there is escapement of income from assessment and in absence of reasons having direct link with the formation of the belief, the writ pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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