TaxTMI 
TaxTMI 
2014 (11) TMI 46
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....edings deserve to be quashed. It be so held now. 2. Ld.CIT(A) gravely erred in law and on facts in confirming reopening of the assessment in absence of speaking order by AO dealing with objections raised by the appellant. Ld.CIT(A) erred in not taking cognizance of the submissions as well jurisdictional High Court judgment relied upon by the appellant holding that AO ought to dispose of the objections by a separate order and not in a composite order of assessment. The order of ld.CIT(A) failing to adjudicate above proposition being erroneous and prejudicial ought to be set aside and reassessment be held as illegal & void ab initio. 3. Ld.CIT(A) erred in law and on facts in confirming reassessment ignoring the submissions that order sought to be reopened by AO no longer existed. Ld.CIT(A) failed to appreciate that order dated 31.12.2008 quashed by Hon'ble ITAT left no basis for reasons to believe escapement of income to initiate proceedings u/s.147 of the Act. It be so held now. 4. Ld.CIT(A) erred in law and on facts in confirming proceedings initiated beyond a period of four years not barred by time. Ld.CIT(A) erroneously converted/presumed reassessment proceedings a....
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....e grounds of appeal at the time of or before the hearing of the appeal. 2. Briefly stated facts are that the case of the assessee was reopened by issuing notice u/s.148 of the Act on 30/03/2012. In response to the notice, assessee filed return of income on 30/04/2012 and also raised certain objections against reopening of the assessment. The AO rejected the objections of the assessee and framed assessment u/s.143(3) r.w.s.147 of the Act, thereby the AO assessed the income at Rs. 20,65,51,371/-. Against this, the assessee filed an appeal before the ld.CIT(A), who after considering the submissions of the assessee, partly allowed the appeal. However, the grounds raised by the assessee against the reopening of the assessment and the re-assessment being time-barred is rejected by the ld.CIT(A). Now, the assessee is in further appeal before us. 3. Ground Nos.1 to 5 are legal and are inter-related, therefore these are being disposed of together. The ld.counsel for the assessee Shri S.N.Soparkar submitted that the ld.CIT(A) has not considered the submissions of the assessee. A specific submission was made that the mandatory provisions of sections 147 and 151 are not complied with bef....
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....ee submitted that before the ld.CIT(A) a specific submission was made that the AO has failed to take note of the judgement of the Hon'ble Gujarat High Court rendered in the case of General Motors India (P) Ltd. vs. Dy.CIT (2012) 210 Taxman 20 (Guj.), whereby the Hon'ble High Court has held that it is not open to the AO to decide the objections in the composite order of assessment. Therefore, the assessment so framed is liable to be quashed. We find that the ld.CIT(A) in paras-4 to 4.6 have decided the grounds raised before him as under:- "4. I have gone through the assessment order and submissions of the A.R. of the appellant carefully. I have also called for the assessment records and examined the same. It is seen that in this case the assessment made u/s. 143(3) of the I.T. Act has been quashed by the ITAT, Ahmedabad. Thus, the only surviving order is the order u/s. 143(1) of the I.T. Act. In order to reopen the assessment which has only been completed assessment u/s.143(1) of the I.T. Act then it is not necessary to establish that the escapement of income has been caused by any default on the part of the assessee to disclose truly and fully all material facts necessary ....
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....erwise by way of tax or interest, an intimation was to be spent, without prejudice to the provisions of section 143(2), to the assessee specifying the sum so payable and such intimation was deemed to be a notice of demand issued under section 156. The first proviso to section 143(1)(a) allowed the Department to make certain adjustments in the income or loss declared in the return. They were as follows: (a) any arithmetical errors in the return, accounts and documents accompanying it were to be rectified ; (b) any loss carried forward, deduction, allowance or relief which on the basis of the information in such return, accounts or documents, was prima facie admissible, but which was not claimed in the return was to be allowed; (c) any loss carried forward, relief claimed in the return which on the basis of the information as available in such return accounts or documents was prima facie inadmissible was to be disallowed. What were permissible under the first proviso to Section 143(1) (a) to be adjusted were, (i) only apparent arithmetical errors in the return, accounts or documents accompanying the return, (if) loss carried forward, deduction, allowance or relief, which ....
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....rd is given under section 143(1)(a) indicates that the Assessing Officer has to proceed accepting the return and making the permissible adjustments only. As a result of insertion of the Explanation to section 143 by the Finance ( No.2) Act of 1991 with effect from October 1, 1991, and subsequently with effect from June 1,1994, by the Finance Act, 1994, and ultimately omitted with effect from June 1, 1999, by the Explanation as introduced by the Finance (No.2) Act of 1991 an intimation sent to the assessee under section 143(1) (a) was deemed to be an order for the purposes of section 246 between June 1, 1994 and May 31, 1999, and under section 264 between October 1,1991 and May 31, 1999. It is to be noted that the expressions "intimation" and "assessment order" have been used at different places. The contextual difference between the two expressions has to be understood in the context the expressions are used. Assessment is used as meaning sometimes "the computation of income", sometimes the determination of the amount of tax payable" and sometimes "the whole procedure laid down in the Act for imposing liability upon the tax payer". In the scheme of things, as noted above, the intim....
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....o default on the part of the assessee in furnishing truly and fully particulars of income, the assessment cannot have been reopened beyond four years is concerned, as narrated above, since the only surviving assessment in this case is order u/s.143(1) of the I.T. Act hence, in order to reopen such case what is required is only the satisfaction on part of the income that income chargeable to tax had escaped assessment. The condition that income chargeable to tax has escaped assessment because of default on the part of the assessee to truly and fully disclosed material facts necessary for assessment does not apply. 4.6. In view of the above, the contentions of the A.R. of the appellant have no merits. These grounds are hence dismissed. The reopening of assessment is hence upheld." 6.1. From the order of ld.CIT(A), it is evident that he did not advert to all the grounds raised before him. It was specifically urged before him that the provisions of sections 147 and 151 of the Act were not complied with. We find no whisper in the order qua this submission. It was also submitted that proceedings were initiated after lapse of four years and same is barred by time. The assessee had a....