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TMI Blog2020 (4) TMI 530X X X X Extracts X X X X X X X X Extracts X X X X ..... - Shri Shamim Yahya (AM) And Shri Ramlal Negi (JM) For the Assessee : None Nitesh Joshi For the Department : Shri V. Sreekar ORDER PER SHAMIM YAHYA (AM) :- This appeal by the assessee is directed against the order of learned CIT(A) dated 15.4.2008 pertains to A.Y. 2002-03. 2. The grounds of appeal read as under :- The appellant objects to the order dated 15 April 2008 passed by the Commissioner of Income Tax (Appeals)-X, Mumbai [ CIT(A) ] for the aforesaid assessment year on the following among other grounds: 1(a) The learned CIT(A) erred in confirming the reopening of the assessment under section 147 of the ITA. (b) The learned CIT(A) erred in observing that the grievance of the appellant that its objections raised during the course of assessment proceedings to the reopening of the case under section 147 were not dealt with by the assessing officer by a speaking order now stands remedied. 2. The learned CIT(A) erred in confirming the action of the assessing officer in restricting the deduction under section 35(l)(iv) of the Income-tax Act ( ITA ) to ₹ 1,02,86,739 i.e. after excluding government grant of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laneous Application by the assessee the same was recalled vide order dated 11.7.2019 in M.A. No. 333/Mum2018. Pursuant to the above said recall, this appeal has been heard by us. 4. First issue raised in this appeal is that reassessment is bad in law in as much as assessee s objection to the reopening is not being disposed of by the Assessing Officer by a speaking order. In this connection learned Counsel of the assessee has placed reliance upon following case laws :- Fomentro Resorts Hotels Ltd. Vs. ACIT (ITA No. 63 of 2007) DCIT Vs. M/s. Firstsource Solutions Ltd. (ITA No. 3985/Mum/2016 and others dated 22.5.2019) Asian Paints Ltd. Vs. DCIT (296 ITR 90) Bayer Material Science (P) Ltd. Vs. DCIT (66 Taxmann.com 335) KSS Petron Private Ltd. Vs. ACIT (ITA No. 224 of 2014) 5. Brief facts of the case on the assessee s challenge to the reopening is that the challenge was noted by learned CIT(A). He agreed with the assessee that the Assessing Officer has failed to pass a speaking order on objection raised by the assessee to the reopening. However, learned CIT(A) was of the opinion that the same is a curable defect, hence, he noted in the course o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cured by remitting matter to the authority. 9. In rejoinder to this, learned Counsel of the assessee submitted that this is a dismissal of Special Leave Petition simplicitor by the Hon'ble Supreme Court. Hence, he submitted that the same cannot be considered to be the order of Supreme Court which is binding on the authorities below. He submitted that dismissal of the SLP simplicitor cannot be equated to laying down the law by the Supreme Court. He submitted that the decision of Hon'ble Bombay High Court in favour of the assessee is correctly applicable. He submitted that this view has also been accepted by this Tribunal in the case of DCIT Vs. M/s. Firstsource Solutions Ltd. (ITA no. 3985/Mum/2016 others vide order dated 22.5.2019. 10. Upon careful consideration, we find that the Coordinate Bench of this Tribunal in the case of M/s. Firstsource Solutions Ltd. (supra) has considered similar issue. By elaborate order the Tribunal came to the conclusion that in view of the Hon'ble Jurisdictional High Court decision, non-disposal of the objection by the Assessing Officer by speaking order is fatal to the assessment and matter cannot be restored back to the Asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessing Officer for enabling him to dispose of the objections of the assessee and pass fresh assessment orders. In our view, the issue is no more res integra in view of the decision of the Hon'ble Jurisdictional High Court in KSS Petron Pvt. Ltd. (supra), wherein, the Hon'ble Jurisdictional High Court has held that if the re assessment order is passed without disposing of the objections raised by the assessee, they have to be quashed and no second opportunity can be given to the Assessing Officer to pass fresh assessment orders after disposing of the objections of the assessee. The same view has been expressed by the Co ordinate Bench in the decisions cited by the learned Sr. Counsel for the assessee. Upon careful reading of the decision of the Hon'ble Supreme Court in Larsen Toubro Ltd. v/s State of Jharkhand Ors., in Civil Appeal no.5390/2007, cited by learned Departmental Representative, we find it to be not applicable to the facts of the present case, as the said decision is not on the issue of validity of re assessment order on account of non disposal of objection raised by the assessee. It is relevant to observe, post conclusion of hearing of the appeal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Departmental Representative is of the Hon'ble Jurisdictional High Court in NTUC Income Insurance Co operative Ltd. v/s DDIT, [2013] 33 taxmann.com 255 (Bom.). On a careful reading of the aforesaid decision, it is evident that the facts on the basis of which the Hon'ble Jurisdictional High Court restored back the issue to the Assessing Officer to re frame assessment de novo is completely different from the present appeal. In the case before the Hon'ble Jurisdictional High Court, the Assessing Officer had not only communicated the reasons for reopening, but, by a separate communication had intimated the assessee that all conditions laid down in GKN Driveshafts India Ltd. has been met. Admittedly, the assessee did not challenge the aforesaid decision of Assessing Officer. Subsequently, the reassessment order was subjected to the proceedings under section 263 of the Act. In of revision proceeding the assessee contended that due to lack of opportunity various documents/evidences could not be produced before the Assessing Officer. Considering the aforesaid submission of the assessee, the Commissioner set aside the assessment order with a direction to frame de no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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