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TMI Blog2024 (7) TMI 405X X X X Extracts X X X X X X X X Extracts X X X X ..... d and matters are remanded back to the respondent Assessing Officer to dispose of the objections raised by the petitioner for reopening of the assessment. - HONOURABLE MR. JUSTICE BHARGAV D. KARIA AND HONOURABLE MR. JUSTICE NIRAL R. MEHTA Appearance: For the Petitioner(s) No. 1 : Mr B S Soparkar (6851). For the Petitioner(s) No. 1 : Mr Vimal A Purohit (5049). For the Respondent(s) No. 1 : Ms Maithili D Mehta (3206) ORAL JUDGMENT (PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA) 1. Learned advocate Mr. B.S. Soparkar has tendered the draft amendment. The same is allowed in terms of the draft. To be carried out forthwith. 2. Heard learned advocate Mr. B.S. Soparkar for the petitioner and learned Senior Standing Counsel Ms. Maithili Mehta for the respondent. 3. Rule returnable forthwith. Learned Senior Standing Counsel Ms. Mehta waives service of notice of rule for the respondents. 4. Having regard to the controversy in the narrow compass, with the consent of the learned advocates for the parties, the matter is taken up for hearing. 5. By this petition filed by the petitioner-Shri K.J. Koteha Charitable Trust, challenged the notice issued under section 148 of the Income Tax Act, 1961 [ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing Officer issued show-cause notice dated 19.09.2021 raising various notices relating to the completely new issues for making proposed addition giving time of three days to reply to the petitioner. The petitioner sought time on 22.09.2021 together material to reply to the show cause notice dated 19.09.2021. However, the respondent-Assessing officer passed the assessment order dated 24.09.2021 for all the three assessment years under consideration. 8. Learned advocate Mr. Soparkar appearing for the petitioner submitted that the Assessing Officer has not disposed of the objections raised by the petitioner on 06.06.2020 and reiterated on 05.03.2021 by a speaking order and assumed the jurisdiction to proceed further with the framing assessment contrary to the direction of the Hon ble Supreme Court in case of GKN Driveshafts (India) Ltd vs. Income Tax Officers and ors. reported in (2003) 259 ITR 19 SC. It was submitted by not passing order disposing of the objections and straightaway framing the assessment, the Assessing Officer has deprived the petitioner to challenge the issuance of notice at that stage. Reliance was placed on the decision of this Court in case of Ashish Bohra vs. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by passing a speaking order, before proceeding with the assessment in respect of the abovesaid five assessment years. [6.1] In a subsequent decision in the case of Garden Finance Ltd. v. Asstt. CIT reported in (2004) 268 ITR 48 (Guj.) (FB), the effect of Supreme Court decision in the case of G.K.N. Driveshaft (India) Ltd. (Supra) came up for consideration and by a majority opinion it has been thus laid down by this Court as under: What the Supreme Court has now done in the G.K.N. Case (2003)259 ITR 19 is not to whittle down the principle laid down by the Constitution Bench of the Apex Court in Calcutta Discount Co. Ltd. case (1961) 41 ITR 191 but to require the assessee first to lodge preliminary objection before the Assessing Officer who is bound to decide the preliminary objections to issuance of the reassessment notice by passing a speaking order and, therefore, if such order on the preliminary objections is still against the assessee, the assessee will get an opportunity to challenge the same by filing a writ petition so that he does not have to wait till completion of the reassessment proceedings which would have entailed the liability to pay tax and interest on reassessment a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quently, the demand notice dated 30.12.2016 is also quashed and set aside. The matter is remitted to the file of the Assessing Officer at the stage of submitting the objections by the petitioner against the reopening of the assessment for AY 200910. The Assessing Officer now to deal with and dispose of the objections raised by the petitioner on 24.11.2016 and pass a speaking order, before proceeding with the reassessment in respect of the assessment year for which such notice has been issued and communicate the outcome of the same and thereafter after giving some reasonable time to the petitioner to challenge the decision dispose of the objections (in case the Assessing Officer overrules the objections raised by the petitioner by a speaking order). He may proceed further with the reassessment proceedings in respect of AY for which such notice has been issued. The Assessing Officer to give reasonable time to the petitioner which shall not be less than two months from the date of disposing of the objections (in case the Assessing Officer overrules the objections raised by the petitioner by a speaking order). However, it is made clear that we have not expressed anything on merits and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions if raised by the assessee would per se have a direct relation to the legality of the notice of reopening or of the order of assessment. To declare the order of assessment illegal and to permanently prevent the Assessing Officer from passing any fresh order of assessment, merely on the ground that the Assessing Officer did not dispose of the objections before passing the order of assessment, in our opinion would be not the correct reading of the judgement of Supreme Court in case of GKN Driveshafts (India) Ltd vs. Income Tax Officer and ors (supra). In such judgement, it is neither so provided nor we think the Supreme Court envisaged such an eventuality. 27. In the result, the question is answered in favour of the Revenue. The impugned respective judgements of the Tribunal would stand modified by providing that the respective orders of assessment though should stand set aside it would be open for the Assessing Officer to frame fresh assessment after first disposing of the objections of the assessees. Needless to clarify the provisions for time limit for framing the assessment as may be applicable would apply. 8.1 It was submitted that reasons recorded are factually incorrect a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner has alternative efficacious remedy to challenge it before the CIT(A) and therefore no interference may be made in the notice as well as impugned assessment order. 10. Having heard learned advocates for the respective parties and having considered the facts of the case it is not in dispute that the respondent Assessing Officer has not passed any order disposing of the objections raised by the petitioner pursuant to the reasons recorded for issuance of the notice for reopening provided to the petitioner. 11. Hon ble Supreme Court in case of GKN Driveshaft (supra) has held as under: [3] By the order under challenge, a division bench of the High Court at Delhi dismissed the writ petition filed by the appellant challenging the validity of notices issued under sections 148 and 143 (2) of the Income Tax Act, 1961. The High court took the view that the appellant could have taken all the objections in its reply to the notices and that, at that stage, the writ petition was premature. Accordingly, the writ petition was dismissed on 31st January, 2001. Aggrieved by that order, the appellant is in appeal before us. Xxx [5] We see no justifiable reason to interfere with the order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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