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TMI Blog2019 (7) TMI 1728X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Commissioner of Income-Tax (Appeals)-21, Mumbai, [in short referred to as CIT(A) ], Appeal No.CIT(A)-21/IT/661/2009-10 dated 20/12/2010 on various grounds of appeal. By way of Ground No.1, the assessee has challenged the validity of reassessment proceedings. The ground read as under: - 1.Re.: Validity of re-assessment proceedings: 1.1 The Commissioner of Income-tax (Appeals) has erred in confirming the action of the Assessing Officer in re-opening the Appellant's assessment u/s. 148 of the Incometax Act, 1961. 1.2 The Appellant submits that considering the facts and circumstances of its case and the law prevailing on the subject the impugned re-opening u/s. 148 was in excess of jurisdiction and was also otherwise bad in law and the Commissioner of Income-tax (Appeals) ought to have held as such. 1.3 The Appellant submits that the proceedings u/s. 148 of the Act were not in accordance with law and consequently ought to be struck down. 2.1 The Ld. Authorized Representative for Assessee [AR], at the outset, submitted that the objections raised by the assessee against reopening the assessment were never disposed-off by Ld. Assessing Officer as mandated by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst reopening of assessment were ever considered and rejected by Ld. AO at any point of time, during reassessment proceedings. 3. After due consideration of factual matrix, we find that the binding judicial precedent in the shape of cited decision of Hon ble Bombay High Court squarely applies to the fact of the case. The relevant observation of Hon ble court, for ease of reference, could be extracted in the following manner: - 8. We note that once the impugned order finds the Assessment Order is without jurisdiction as the law laid down by the Apex Court in GKN Driveshafts (supra) has not been followed, then there is no reason to restore the issue to the Assessing Officer to pass a further/fresh order. If this is permitted, it would give a licence to the Assessing Officer to pass orders on reopening 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. 9. In fact, to ensure that reopening n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the course of re assessment proceedings, though, the assessee had raised objections challenging the validity of re opening of assessments under section 147 of the Act, however, the Assessing Officer has not disposed of the objections independently by way of separate orders before completion of assessment proceedings under section 143(3) r/w 147 of the Act. The Hon'ble Supreme Court in GKN Driveshafts India Ltd. (supra) has held that before completion of the assessment, the Assessing Officer is duty bound to dispose of the objections of the assessee separately. Therefore, the Assessing Officer in the instant appeal has not followed the due judicial process while dealing with the objections of the assessee. For that reason, the impugned assessment orders are legally unsustainable. Now the issue which arises is, whether in such circumstances, the re assessment orders passed have to be quashed as void ab initio or they are to be restored back to 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Constitution of India. This principle has been well propounded in case of Kunhayammed Vs. State of Kerala 2001(129) ELT 11 (S.C.). Aforesaid view was again affirmed by the hon ble Supreme Court in case of Khoday Distilleries Ltd. Vs. Shree Mahadeshwara Sahakara Sakkare Karkhane Ltd. while disposing of Civil Appeal no.2432 of 2019 in judgment dated. 01.03.2019. Therefore, it cannot be said that in the aforesaid decision, the Hon'ble Supreme Court has laid down the proposition that non disposal of objections against the validity of proceedings initiated under section 147 of the Act is a procedural irregularity which can be cured if the Assessing Officer is given an opportunity to dispose of the objections of the assessee and thereafter complete the assessment. Moreover, the decision of the Hon'ble Supreme Court in GKN Driveshafts India Ltd. (supra) has not been overruled and still holds the field. The next decision cited by the 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 fac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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