TaxTMI 
TaxTMI 
2017 (4) TMI 529
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.... and hearing the petitioner's representative on various dates, the respondent passed an order of assessment on 23.03.2015, by accepting the petitioner's return. While so, the respondent issued a notice dated 16.10.2015 under Section 148 of the said Act seeking to reopen the assessment under Section 147 of the said Act, simply by stating that the respondent has reasons to believe that the petitioner's income escaped assessment. By letter dated 20.11.2015, the petitioner requested for furnishing the informations pertaining to the reasons for reopening the assessment and the copies of documents relied upon by the respondent. The petitioner also requested to treat the return filed on 30.09.2012 as response to the notice under Section 148 of the said Act. After four months, the respondent through letter dated 05.02.2016 furnished the purported reasons recorded for reopening of the assessment. In response to the aforementioned letter, the petitioner gave a reply on 26.03.2016 objecting to the reopening of the assessment. It is specifically stated by the petitioner that a joint venture development agreement dated 12.03.2012 was very much available with the respondent at the ti....
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....ons raised against reopening of the assessment, the respondent cannot pass the final order of assessment. In support of the above contention, the decision of the Apex Court reported in 2003(1) SCC 72 (GKN Driveshafts (India) Ltd. vs. Income Tax Officer and Ors) is relied on. (b) The Joint Venture Agreement dated 12.03.2012 was very much available with the respondent even at the time of the original scrutiny of the returns and therefore, the respondent is not having jurisdiction to reopen the assessment in the absence of any tangible material which has come to his knowledge later. In this aspect, the decision of the Apex Court reported in 2010(2) SCC 723 (Commissioner of Income tax, Delhi vs. Kelvinator of India Limited) is relied on. (c) When, admittedly, the respondent has not passed any speaking order on the objections raised by the petitioner and when the impugned order of assessment itself was passed just one day prior to the expiry of the prescribed period, this Court cannot even remit the matter, by extending the period of limitation, to the respondent to redo the assessment beyond the period prescribed under Section 153(2) of the said Act. In support of the above conte....
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....ny as agreed in the Joint Venture document which has not taken place during the year. Hence the claim of reduction to the tune of Rs. 1,63,58,148/- is found not to be in order and thus the income to the extent is considered as having escaped assessment." 9. The petitioner, on receipt of such communication, sent a detailed objection on 26.03.2016 running to several pages. It is specifically stated therein that the assessment itself was completed under section 143(3) read with Section 147 and that the entire books of accounts, bank statements, re-conciliation of Form 26AS with profit and loss accounts was done during the course of assessment proceedings. It is also stated in their objection that the entire details and agreements and documents were scrutinised in detail before passing the assessment order under section 143(3) and that the petitioner had furnished the details on various matters relevant to the assessment year. Therefore, it is contended by the petitioner in the said reply/objection that reopening of the assessment is without jurisdiction, since it does not satisfy the test for reopening the assessment, as held by the Apex Court in the Kelvinator of India's case.....
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....9, it has been observed as follows: 7. We have noted the submissions of both counsel. The law as laid down by the apex court is binding on this court as well as on the authorities functioning under the statute. This being the position, we fail to understand as to why the first respondent did not decide the objections separately which he is duty bound to decide. The whole idea in laying down the law in the abovereferred judgment of the apex court is to give an opportunity to the assessee to know as to what is the decision on his objections, which decision has also to be arrive at after giving an opportunity to the assessee. In the present case, the assessee has been denied this opportunity. Not only that but in the first three writ petitions what we find is that a common order has been passed on the objections as well as for the reassessment. In the fourth matter, the assessment order does not disclose any decision on the objections at all and undoubtedly no such decision has been given separately on the objections. 8. Having noted this scenario, in our view the proper course will be to interfere with the assessment orders passed in all four matters by the concerne....
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....t to extension of period of limitation. 14. In my considered view, the question of extension of period of limitation, as contended by the petitioner, does not arise at all in this case. Admittedly, the order of assessment impugned in this writ petition was already passed within the prescribed period of limitation. If the Assessing Officer has passed the order of assessment within the prescribed period of limitation and thereafter, if such order is put to challenge before the Court of law and consequently, is set aside on some reason, which in the opinion of the Court is a curable defect, it is always open for the Court to remit the matter back to the Assessing Officer for passing a fresh order of assessment after curing those defects. In such cases, it does not mean that the Court has extended the period of limitation. Needles to say that once the Court has set aside the order and remitted the matter back to the Assessing Authority, the parties are reverted back to their original position as existed before passing the order of assessment and therefore, a fresh order to be passed in pursuant to such remand, is deemed to have been passed within the prescribed period of limitation,....
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.... of limitation, the power to redo such exercise does not fall under the purview of limitation once again. Hence, I reject the contention of the petitioner on this aspect. 16. In all the three cases relied on by the learned Standing Counsel for the respondent, the respective Division Bench of the Bombay High Court has only remitted the matter back to the Assessing Officer to pass a speaking order. 17. No doubt, the learned counsel relied on another Division Bench decision of the Bombay High Court reported in (2016)382 ITR 333 (Bayer Material Science (P.) Ltd. vs. Deputy Commissioner of Income Tax-10(3)). A perusal of the said decision would show that the Assessing Officer has passed a draft assessment order on 30.03.2015 without disposing of the petitioner's objections therein. Since the Division Bench has found that the final assessment order as provided under 4th proviso to sub-section 2 of Section 153 of the Income Tax Act, 1961, has not been passed in that case within the time prescribed, it has set aside the draft assessment order itself. Paragraph No.10 of the said decision reads as follows: 10. In the present facts, we find that the draft Assessment order was pas....