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TMI Blog2018 (2) TMI 1900X X X X Extracts X X X X X X X X Extracts X X X X ..... o follow the law laid down by the Hon ble Supreme Court of India, the Hon ble High Courts and the Appellate Authorities. The assessment orders have been passed by the Assessing Officer in both the cases without following the principles as set out by the Hon ble Apex Court and Hon ble Jurisdictional High Court. - Appeals of Revenue are dismissed. - ITA No.1937/PUN/2016, CO No.35/PUN/2016, ITA No.1938/PUN/2016 And CO No.36/PUN/2016 - - - Dated:- 23-2-2018 - SHRI ANIL CHATURVEDI, AM AND SHRI VIKAS AWASTHY, JM For The Assessee : Shri Pramod Shingte For The Revenue : Shri Mukesh Jha ORDER PER VIKAS AWASTHY, JM : These two appeals have been filed by the Department in the case of two different assessees. ITA No. 1397/PUN/2016 is directed against the order of Commissioner of Income Tax (Appeals)-2, Nashik dated 27-06-2016 for the assessment year 2008-09 in the case of Smt. Nirmala Vijay Sanklecha. In ITA No. 1938/PUN/2016 the Department has filed appeal assailing the order of Commissioner of Income Tax (Appeals)-2, Nashik dated 27-06-2016 for the assessment year 2008-09 in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 41,66,666/-. The Assessing Officer completed assessment u/s. 143(3) r.w.s. 147 by making addition of ₹ 41,66,666/- on account of Short Term Capital Gain in respect of each assessee. Aggrieved by the assessment orders in their respective cases, the assessees filed appeals before the Commissioner of Income Tax (Appeals) inter alia challenging the re-assessment proceedings on account of non-disposal of objections raised by assessees with respect to reasons for re-opening. The contention of the assessees is that the Assessing Officer has not disposed off the objections of assessee by passing order/speaking order. The Commissioner of Income Tax (Appeals) in the case of both the assessees held that the Assessing Officer has not adhered to the procedure laid down by the Hon ble Supreme Court of India in the case of GKN Driveshafts (India) Ltd. Vs. Income Tax Officer Ors. reported as 259 ITR 19 and held that the assessment orders to be invalid. Against the said findings of Commissioner of Income Tax (Appeals), the Department is in appeal in the case of both the assessees before the Tribunal. 3. The assessees have filed cross objections in their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assistant Commissioner of Income Tax in W.P. No. 1905 of 2017 decided on 14-09-2017. The Pune Bench of the Tribunal in the case of Shri Ajay Shantilal Lalwani Vs. Income Tax Officer in ITA No. 145/PN/2015 for assessment year 2005-06 decided on 25-11-2016 set aside the assessment order where the same was passed without disposing of the objections of assessee in violation of law laid down by GKN Driveshafts (India) Ltd. Vs. Income Tax Officer Ors. (supra). The ld. AR submitted that Pune Bench of the Tribunal has been consistently following the order of Jurisdictional High Court in the case of KSS Petron Private Ltd. Vs. Assistant Commissioner of Income Tax (supra) and have set aside the assessment proceedings where the objections of the assessee qua reasons recorded for reopening are not decide by passing speaking order. To support his submissions, the ld. AR placed reliance on the following decisions : i. Assistant Commissioner of Income Tax Vs. M/s. J.K. Petrochmical Industries, ITA Nos. 34 35/PN/2012 for assessment years 2003- 04 and 2004-05 decided on 30-11-2016; ii. Income Tax Officer Vs. M/s. Metal United Alloys Fusion, ITA No. 2286/PUN/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer Ors. (supra) has held that the Assessing Officer is bound to furnish reasons within a reasonable time. On receipt of reasons, the assessee is entitled to file objections to issuance of notice and the Assessing Officer is bound to dispose of the same by passing a speaking order. 10. In the instant case we find that the Assessing Officer has not disposed of objections of the assessee against issuance of notice for re-opening assessment by passing a speaking order. The assessees filed objections against re-opening. In the case of one of the assessee (Smt. Nirmala Vijay Sanklecha) the Assessing Officer disposed of the objections on 24-02-2014by observing as under : Shri Girish Sathbhai, CA AR of the a attended and explain the facts issue raised during scrutiny proceeding stated that the not considered capital gain income as the income already shown in firm case. AR s says duly considered and but not accepted income added in total income. and in the case of other assessee there is no order whatsoever disposing of the objections. 11. The Hon ble Apex Court in unequivocal terms has he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son to restore the issue to the Assessing Office to pass a further/fresh order. If this is permitted, it would give a licence to the Assessing Officer to pass orders on re-opening notice, without jurisdiction (without compliance of the law in accordance with the procedure, yet the only consequence, would be that in appeal, it would be restored to the Assessing Officer for fresh adjudication after following the due procedure. This would lead to unnecessary harassment of the Assessee by reviving stale/ old matters. 15. It is apparent from record that the Assessing Officer committed error in not following the proper procedure for deciding the objections of assessee against re-opening of assessment. The Assessing Officer is a quasi judicial authority and is therefore, duty bound to follow the law laid down by the Hon ble Supreme Court of India, the Hon ble High Courts and the Appellate Authorities. The assessment orders have been passed by the Assessing Officer in both the cases without following the principles as set out by the Hon ble Apex Court and Hon ble Jurisdictional High Court. Thus, considering the facts of the case and in the light of various judgments the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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