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TMI Blog2018 (5) TMI 260X X X X Extracts X X X X X X X X Extracts X X X X ..... ons - Held that:- We are not expressing any opinion touching upon the question of limitation as the same would amount to pre-judging the issue. It is for the Assessing Officer to decide the said question by giving reasons. We confirm the order passed by the learned Judge remitting the matter to the Assessing Officer for passing a fresh order, after giving disposal to the objections. We set aside the findings given by the learned Single Judge with regard to the issue relating to limitation. - W.A.No.463 OF 2017 - - - Dated:- 25-4-2018 - K. K. Sasidharan And R. Subramanian, JJ. For the Appellant : Mr. Suhrith Parthasarathy For the Respondents : Mrs. Hema Muralikrishnan JUDGMENT K. K. Sasidharan, J. Introductory:- Whether the assessment order passed by the Income Tax Officer under Section 143(3) of Income Tax Act, invoking Section 147 of the Income Tax Act, (hereinafter referred to as the I.T. Act ) after issuing notice under Section 148 of the Act is bad in law and is void ab initio on account of the failure to follow the judgment of the Hon'ble Supreme Court in GKN Driveshafts (India) Ltd. vs. Income Tax Officer, (2002) 125 Taxman 963 (SC) to the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of it would result in quashing the assessment order. The learned counsel contended that the violation of a mandatory procedure cannot be cured by remitting the matter. According to the learned counsel, since the Assessment Order was passed just one day prior to the expiry of the period of limitation, it would not be possible to pass a fresh assessment order after the disposal of the objections. The learned counsel placed reliance on Sona Builders v. Union of India (2001 (10) SCC 280) and an unreported decision of a learned Single Judge of this Court in Mrs.Jayanthi Natarajan vs. Assistant Commissioner of Income Tax (Order dated 14 September 2017 in W.P.No.1905 of 2017) in support of his contention that failure to follow the essential procedure would result in declaring the assessment order void and non-est. (b) The learned Standing Counsel for the Revenue contended that the failure to follow the procedure is only an irregularity, which would not vitiate the ultimate order. According to the learned counsel, the Assessing Officer was having time till 31 March 2017 for passing the fresh assessment order. Therefore, even after remand, there is a period of three months for passing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the procedure indicated in GKN Driveshafts (India) Ltd., presumably to take advantage of the irregularity committed by the Assessing Officer by not following the law laid down by the Supreme Court. 13. The right given to an assessee to ascertain the views of the Assessing Officer taking into account the objections can be waived by the assessee expressly or by implication. The appellant knowing fully well that there was no disposal to the objections, submitted to the jurisdiction of the Assessing Officer. It was only when the assessment order was passed, the appellant has come up with a contention that the mandatory procedure was not complied with by the Assessing Officer. 14. The learned Single Judge in the order dated 7 April 2017, indicated that the Assessing Officer has committed a procedural irregularity and therefore remitted the matter to the Assessing Officer. 15. The appellant has raised two contentions in this appeal. (a) The assessment order passed in violation of the law laid down by the Supreme Court is void and it cannot be ratified by remitting the matter to the Assessing Officer; (b) The assessment order was passed just one day prior to the period of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cedural requirement later and pass a fresh order on merits. 20. The learned counsel for the appellant by placing reliance on an order passed by the learned Single Judge in Mrs.Jayanthi Natarajan (cited supra) submitted that the order being one made without complying with the mandatory procedure, is non est in law and it cannot be given life by complying with the procedure later. In short, it is the contention that non compliance of a prescribed procedure would nullify the order and the irregularity cannot be cured later. 21. The learned counsel for the Revenue contended that the order dated 14 September 2017 in W.P.No,1905 of 2017 is bad in law. It was passed ignoring the order passed by a Coordinate Bench which is challenged in this appeal. 22. Since the learned counsel for the appellant placed heavy reliance on the view expressed in Mrs.Jayanthi Natarajan, we have perused the said order. We are in respectful disagreement with the views expressed by the learned Single Judge in W.P.No.1905 of 2017. 23. The learned Single Judge by placing reliance on the decision of the Supreme Court in Sona Builders, quashed the assessment order without remitting the matter to the Asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, the appellant wanted the Court to adjudicate the question regarding limitation for passing a fresh order after giving disposal to the objections. The learned Judge therefore made certain observations touching the question regarding limitation. 30. The learned counsel for the appellant contended that Clause 57.7 of the Explanatory notes to the provisions of the Finance Act, 2016, makes it clear that the amendments made by the Finance Act, 2016, to Section 153 of the Income Tax Act, 1961, would apply retrospectively. According to the learned counsel, this would mean that the time limit prescribed by Section 153(2) as amended by the Finance Act, 2016, is applicable to the case of the appellant. If this position is accepted, it is clear that only one day prior to the limitation period, Assessing Order was passed. 31. The learned Standing Counsel for the Revenue on the other hand contended that notice for reassessment under Section 148 of the I.T. Act, 1961 in respect of assessment year 2012-13 was issued on 16 October 2015 which falls in the Financial Year 2015-16 and the end of the Financial Year is 31 March 2016. According to the learned counsel, as on the date of issuan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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