TaxTMI 
TaxTMI 
2015 (8) TMI 269
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....f this petition under Article 226 of the Constitution of India, the petitioner has prayed for an appropriate writ, direction and order to quash and set aside the impugned notice dated 26.02.2014 under Section 148 of the Income Tax Act, 1961 (hereinafter referred to as "Act") issued by the respondent for the assessment year 200910. [2.1] The petitioner has also prayed for an appropriate writ, direction and order to quash and set aside the order dated 20.03.2015 passed by the respondent herein - Assessing Officer under Section 143(3) read with Section 147 of the Act for AY 200910. [3.0] Facts leading to the present Special Civil Application in nutshell are as under: [3.1] That the petitioner - assessee - Cooperative Society engaged i....
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....ssessment/reassessment order dated 20.03.2015. Hence, the petitioner has preferred the present Special Civil Application for the aforesaid reliefs. [4.0] Shri Tej Shah, learned advocate appearing on behalf of the petitioner has vehemently submitted that impugned assessment order under Section 143(3) read with Section 147 of the Act is absolutely illegal. It is submitted that in the present case the Assessing Officer earlier did not dispose of the objections raised by the petitioner, raised against the reopening of the assessment/reasons recorded for reopening of the assessment on 11.06.2014 and without deciding and disposing of the same earlier, the Assessing Officer had dealt with and disposed of the objections simultaneously while pass....
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....hed and set aside. [5.0] Shri Nitin Mehta, learned advocate appearing on behalf of the respondent is not in a position to dispute that the objections raised by the petitioner on 11.06.2014 which are raised against reopening of the assessment came to be dealt with and disposed of by the Assessing Officer simultaneously while passing the assessment order. [6.0] Heard learned advocates appearing for respective parties at length. At the outset it is required to be noted that the notice under section 148 of the Act to reopen the assessment for AY 2009-10 was issued by the Assessing Officer as far as back on 26.02.2014. That thereafter on the request made by the assessee, the Assessing Officer communicated the petitioner - assessee the reas....
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....itled 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 instance 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." [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 n....
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....he Assessing Officer, ii) challenging the speaking order of the Assessing Officer under section 148 of the Act (p.87)." [6.2] In the case of Arvind Mills Ltd. (Supra), in para 9, the Division Bench after considering the decision of the Hon'ble Supreme Court in the case of G.K.N. Driveshafts (India) Ltd. (Supra) and the Garden Finance Ltd. (Supra) has observed and held as under: "9. The position in law is thus well settled. After a notice for reassessment has been issued an assessee is required to file the return and seek reasons for issuance of such notice. The Assessing Officer is then bound to supply the reasons within a reasonable time. On receipt of reasons, the assessee is entitled to file preliminary objections to issuanc....
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....ns raised by the petitioner against reopening of the assessment and/or against reasons recorded for reopening of the assessment and thereafter to communicate the outcome of the same to the petitioner and after giving reasonable time to the petitioner to challenge the same before higher Court / Forum, may proceed further with the assessment in respect of the assessment for which such notice has been issued. [8.0] In view of the above and for the reasons stated above, the present Special Civil Application succeeds in part. Impugned assessment order dated 20.03.2015 passed by the Assessing Officer is hereby quashed and set aside and the matter is remitted to the file of the Assessing Officer at the stage of submitting the objections by the ....