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TMI Blog2024 (9) TMI 1560X X X X Extracts X X X X X X X X Extracts X X X X ..... RT] the objections raised by the Assessee are required to disposed off by the Assessing Officer by passing a speaking order before proceedings with the assessment. Since the Assessing Officer has failed to do the same in the present case, the assessment order, dated 04/12/2019, passed by the Assessing Officer was without jurisdiction. Our view also draws strength from the decision of Bayer Material Sciences Private Limited. [ 2016 (3) TMI 179 - BOMBAY HIGH COURT] , and Fomento Resorts Hotels Ltd. [ 2019 (9) TMI 1284 - BOMBAY HIGH COURT] . Even otherwise, we note that in the identical facts and circumstances, the Tribunal has in the case of the Appellant has accepted the exemption claimed by the Appellant under Section 10(38) of the Act in respect of capital gains arising from the same of same script while allowing appeal preferred by the Appellant for the Assessment Year 2011-12 - addition under Section 69A of the Act as well as the assessment order passed under Section 144 read with section 147 of the Act are quashed. Decided in favour of assessee. - Ms. Padmavathy S, Accountant Member And Shri Rahul Chaudhary, Judicial Member For the Appellant/Assessee : Ms. Ritu Kamal Kishore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 259 ITR 19 (SC) and hence the same will vitiate the assessment order making it unsustainable in law. 5. On the facts and the circumstances of the case and in law, the Ld. Commissioner of Income Tax (Appeals) erred in confirming the Ld. Assessing Officer's action in not allowing proper opportunity of being heard and passing the order in great haste. The Ld. Commissioner of Income Tax (Appeals) having noted that the Assessing Officer had taken more than six months to respond to appellant's request to supply the copy of reasons recorded after request dated 30.04.2019, however the Ld. Commissioner of Income Tax (Appeals), still justified the time provided of merely four (4) days by the Assessing Officer to respond last online show cause notice, that could be responded only eleven (11) days later by the appellant, due to technical glitch demonstrated through screenshots of the portal placed in the paper-book and that too was ignored by the Ld. Commissioner of Income Tax (Appeals). The Ld. Commissioner of Income Tax (Appeals) ought to have quashed the order of the Assessing Officer in view of reasonable opportunity not granted by the Assessing Officer. 6. On the facts and the ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ragraph 2 above. 4. When the appeal was taken up for hearing the Learned Authorised Representative for the Appellant advanced arguments on Ground No. 3, 4 6 raised in the appeal and submitted that the objections filed by the Appellant were not disposed by way of a separate order and therefore, the re-assessment order passed by the Assessing Officer was bad in law. On merits, the Learned Authorised Representative for the Appellant submitted that Assessing Officer had made the addition by solely relying on the general information supplied by the Deputy Director Income Tax (Investigation) without making any independent enquires. Learned Authorised Representative for the Appellant placed on record decision of the Tribunal, dated 30/05/2024, passed in ITA No.4508/Mum/2023 whereby identical claim for exemption under Section 10(38) of the Act in respect of capital gains arising from transfer of shares of the same script sold during the previous year relevant to the Assessment Year 2011-12 was allowed by the Tribunal. 5. Per Contra, the Learned Departmental Representative relied upon the assessment order and submitted that the Appellant was non-compliant during the assessment proceedings a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntitled to file objections to issuance of notice and the Assessing Officer is bound to dispose of the same by passing a speaking order. In the instant case, as the reasons have been disclosed in these proceedings, the Assessing Officer has to dispose of the objections, if filed, by passing a speaking order, before proceeding with the assessment in respect of the abovesaid five assessment years. (Emphasis Supplied) 11.2. Thus, the Hon ble Supreme Court provided that (a) on receipt of reasons from the assessing officer, the assessee can file objections to reopening of assessment and (b) the objections raised by the assessee must be disposed off by the Assessing Officer by passing a speaking order before proceedings with the assessment. 11.3. In the case of KSS Petron Pvt. Ltd. Vs. ACIT [ITA No. 224 of 2014 dated 03/10/2016](Bom)(HC), the Assessing Officer, without disposing of the objections of the Appellant, completed the assessment under Section 143(3) read with Section 147 of the Act. The issue travelled to the Tribunal. The Tribunal held that the Assessing Officer was bound to follow the procedure laid down by the Hon ble Supreme Court in the case of GKN Driveshaft (India) Privat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following the due procedure. This would lead to unnecessary harassment of the Assessee by reviving stale/ old matters. 9 In fact, to ensure that re-opening notices are disposed of, expeditiously the parliament itself has provided in Section 153(2) of the Act a period of limitation within which the Assessing Officer must pass an order on the notice of re-opening i.e. within one year from the end of the financial year in which the notice was issued. In fact, Section 153 (2A) of the Act as in force at the relevant time itself provides that an order of fresh Assessment, consequent to the order of Tribunal under Section 254 of the Act, would have to be passed within one year from the end of the financial year in which the order under Section 254 of the Act, was passed by the Tribunal and received by the Commissioner of Income Tax. 10 The Director of the appellant has filed an affidavit dated 19 September, 2006. In the affidavit, it is stated that consequent to the impugned order of the Tribunal dated 14 August, 2013, the Assessing Officer has not passed any order of re-assessment. Time was granted on the last occasion to enable the Respondent to respond to the affidavit dated 19th Sept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er by passing a speaking order before proceedings with the assessment. Since the Assessing Officer has failed to do the same in the present case, the assessment order, dated 04/12/2019, passed by the Assessing Officer was without jurisdiction. Our view also draws strength from the decision of the Hon ble Bombay High Court in the case of Bayer Material Sciences Private Limited Vs. Deputy Commission of Income Tax 10(3) : [2016] 382 ITR 333 (Bombay), and Fomento Resorts Hotels Ltd. Vs. Assistant Commissioner of Income, Central Circle, Panjim, Goa : Tax Appeal No. 63 of 2007, dated 30/08/2019. Even otherwise, we note that in the identical facts and circumstances, the Tribunal has in the case of the Appellant has accepted the exemption claimed by the Appellant under Section 10(38) of the Act in respect of capital gains arising from the same of same script while allowing appeal preferred by the Appellant for the Assessment Year 2011-12. [ITA No.4508/Mum/2023, dated 30/05/2024]. In view of the aforesaid, the addition of INR 10,77,000/- made by the Assessing Officer under Section 69A of the Act as well as the assessment order, dated 04/12/2019, passed under Section 144 read with section 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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