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TMI Blog2020 (12) TMI 991X X X X Extracts X X X X X X X X Extracts X X X X ..... in the circumstances of the case the Tribunal was right in holding that the reopening of the assessment was not proper?" 3.The assessee, an individual, filed his return of income for the assessment year under consideration 2006-07, on 20.08.2007 admitting a total loss of Rs. 34,93,789/-. The return was processed under Section 143(1) of the Act, subsequently, the case was selected for scrutiny and assessment was completed under Section 143(3) of the Act, on 24.11.2008. Thereafter, the case was reopened by issuing a notice under Section 148 of the Act on 28.03.2013. The reason for reopening was on the ground that in the original assessment, the Assessing Officer has extended excessive and unnecessary relief to the assessee on wrong appreciation of facts. The assessee objected to the reopening and the reason for reopening of the assessment and in particular, that the reasons for reopening were not communicated to the assessee, in spite of specific request made by the assessee and therefore, the re-assessment done under Section 147 of the Act was invalid. Further, the assessee, on merits, contended that no new tangible material was brought on record by the Assessing Officer to reopen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and that the Assessing Officer, at the time when the original assessment was completed, failed to undertake the assessment by applying his mind and there is no discussion in the original assessment order with regard to the claim of exemption in respect of the sale of land by the assessee. Further, the land in question was not put to use for any agricultural activity for eight years and there was discrepancy in the chitta and adangal extracts produced by the Tahsildar and those produced by the assessee and these were all factors which were noted by the Assessing Officer in the re-assessment proceedings. The correctness of the order passed by the Assessing Officer was tested by the CIT(A), who after considering all aspects, confirmed the assessment and the Tribunal erroneously interfered in the order on the ground that the reasons for reopening were not communicated. 6.The learned counsel referred to the recent decision of the Hon'ble Supreme Court in State of U.P. vs. Sudhir Kumar Singh [Civil Appeal No.3498 of 2020, dated 16.10.2020] and submitted that the role of audi alteram partem, part of natural justice, is not an inflexible tool in the hands of the Court, but must yie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Counsel for the appellant/Revenue and Mr.Suhrit Parthasarathy, learned counsel for the respondent/assessee. 10.Before we test the correctness of the submission of the learned Senior Standing Counsel that the assessee was not put to prejudice on account of the non-communication of the reasons for reopening and therefore, the assessment cannot be declared as invalid, we will first consider as to the argument of the learned Senior Standing Counsel based upon Section 292BB of the Act. The said provision deals with cases where notices issued under the Act are deemed to be valid in certain circumstances. This provision was inserted by Finance Act, 2008 (18/2008) with effect from 01.04.2008. The said provision states that if the assessee has appeared in any proceeding, or cooperated in any enquiry relating to an assessment or re-assessment, it shall be deemed that any notice under any provision of this Act, which is required to be served upon him, has been duly served upon him in time in accordance with the provisions of the Act and such assessee shall be precluded from taking any objection in any proceeding or enquiry under the Act that the notice was (a) not served upon him; or (b) no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessing Officer to dispose of the objections placed to the reopening of the assessment by passing a speaking order. If the Assessing Officer fails to do so, the re-assessment proceedings is liable to be set aside. The procedure, which has been carved out by the Hon'ble Supreme Court in GKN Driveshafts (India) Ltd., (supra) binds the assessee as well as the Revenue. Therefore, the procedure cannot be done away with especially when, the assessee has made a request in writing for furnishing the reasons for reopening, which was received by the Assessing Officer and there is no document produced by the Revenue to prove that reasons were communicated to the assessee. The assessee having made a request for furnishing copy of the reasons for reopening, which was received by the Assessing Officer, would clearly be put to prejudice on account of non-communication. Therefore, the decision of the Hon'ble Supreme Court in Sudhir Kumar Singh (supra) cannot be made applicable to the facts and circumstances of the case. Therefore, the Tribunal was well justified in holding that the reassessment proceedings were invalid. 13.Further, with regard to the validity of the reopening pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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