IN THE INCOME TAX APPELLATE TRIBUNAL
`H' : NEW DELHI
DELHI BENCH `H
G.D.AGRAWAL, VICE PRESIDENT AND
BEFORE SHRI G.D.AGRAWAL,
GARG, JUDICIAL MEMBER
SHRI CHANDRA MOHAN GARG,
No.2787/Del/2013
ITA No.
2004-05
Assessment Year : 2004-
M/s Vabsak Properties Vs. Income Tax Officer,
Pvt.Ltd., Ward-17(1),
Ward-
A-22, Anand Vihar, New Delhi.
Delhi 110 092.
PAN : AABCV6198G.
(Appellant) (Respondent)
Appellant by : Shri Salil Agarwal, Advocate and
Shri Shailesh Gupta, CA.
Respondent by : Shri Sameer Sharma, Sr.DR.
ORDER
G.D.AGRAWAL, VP :
PER G.D.AGRAWAL,
This appeal by the assessee is directed against the order of
learned CIT(A)-19, New Delhi dated 14th December, 2012 for the AY
2004-05.
2. The assessee has raised various grounds of appeal. However,
ground No.2 of the assessee's appeal which goes to the root of the
matter reads as under:-
"That the learned CIT(Appeals) having found that the
objections raised by the assessee before the Assessing
Officer against the assumption of jurisdiction u/s 147 of the
Act, were not disposed off by the Assessing Officer, has
erred in holding the same to be only a procedural error.
2 ITA-2787/Del/2013
That the learned CIT(Appeals) ought to have quashed the
assessment order."
3. We have heard both the sides and perused the material placed
before us. We find that the issue raised by the assessee vide ground
No.2 of its appeal is fully covered by the decision of Hon'ble Apex
Court in the case of GKN Driveshafts (India) Ltd. Vs. Income-tax Officer
and Others [2003] 259 ITR 19 (SC), wherein their Lordships held as
under:-
"When a notice under section 148 of the Income-tax Act,
1961, is issued, the proper course of action for the noticee
is to file the return and, if he so desires, to seek reasons for
issuing the notices. The Assessing Officer is bound to
furnish reasons within a reasonable time. On receipt of
reasons, the noticee is entitled to file objections to
issuance of notice and the Assessing Officer is bound to
dispose of the same by passing a speaking order."
4. In the case under appeal, though the assessee has filed the
objection against the issue of notice under Section 148, the Assessing
Officer, in the assessment order under Section 143(3), mentions "The
objections filed by the assessee were disposed off". That during the
remand proceedings before the learned CIT(A), the Assessing Officer
admitted that no separate/written order was passed on the objection of
the assessee. That despite the above remand report, learned CIT(A)
upheld the order of the Assessing Officer which was in complete
violation of ratio laid down by the Hon'ble Apex Court.
5. Learned DR, on the other hand, relied upon the orders of
authorities below.
3 ITA-2787/Del/2013
6. After considering the arguments of both the sides and perusing
the material placed before us, we are of the opinion that in the case
under appeal before us, the procedure laid down by the Hon'ble Apex
Court in the case of GKN Driveshafts (India) Ltd. (supra) has not been
followed by the Assessing Officer. As per Hon'ble Apex Court, after the
receipt of notice under Section 148, the assessee has a right to ask for
the reasons for issuing the notices. The Assessing Officer is bound to
furnish the reasons recorded for reopening of assessment. On receipt
of reasons, the assessee is entitled to file the objection to the issuance
of notice and thereafter, the Assessing Officer is bound to dispose of
the same by passing a speaking order. In the case under appeal
before us, the assessee has filed the objection to the issuance of notice
and the Assessing Officer failed to dispose of the same by passing a
speaking order. During remand proceedings, the Assessing Officer
admitted that no such written order was passed disposing of the
assessee's application. Therefore, the Assessing Officer has failed to
follow the direction given by the Hon'ble Apex Court in the case of GKN
Driveshafts (India) Ltd. (supra). In the above circumstances, we deem
it proper to set aside the orders of authorities below and restore the
matter to the file of the Assessing Officer with the following directions:-
(i) That he will dispose of the assessee's objection raised
against the reopening of assessment in accordance with
law by passing a speaking order and will supply the copy
thereof to the assessee.
(ii) That if he is of the opinion that assessment is validly
reopened, then, he will proceed to make the assessment
afresh de novo in accordance with law after allowing
adequate opportunity of being heard to the assessee.
4 ITA-2787/Del/2013
7. Since we have entirely set aside the assessment order, the other
grounds raised by the assessee with regard to merits of the addition of
`20 lakhs made by the Assessing Officer under Section 68 need no
adjudication.
8. In the result, the appeal of the assessee is deemed to be allowed
for statistical purposes.
Decision pronounced in the open Court on 8th November, 2013.
Sd/- Sd/-
GARG)
(CHANDRA MOHAN GARG) (G.D.AGRAWAL)
JUDICIAL MEMBER VICE PRESIDENT
Dated : 08.11.2013
VK.
Copy forwarded to: -
1. Appellant : M/s Vabsak Properties Pvt.Ltd.,
A-22, Anand Vihar, Delhi 110 092.
2. Respondent : Income Tax Officer,
Ward-17(1), New Delhi.
Ward-
3. CIT
4. CIT(A)
5. DR, ITAT
Assistant Registrar
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