TaxTMI 
TaxTMI 
2017 (8) TMI 327
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.... of the I.T. Act, 1961 is bad on facts and in law and requires to be annulled. 2. That the Ld.CIT (A) failed to appreciate that the provisions of section 148 of the I.T. Act, 1961 do not apply to the facts of the case and that the Assessing Officer has wrongly assumed jurisdiction without satisfying the primary requirement of reasons to believe that the income has escaped assessment. 3. That the Assessing Officer having considered the bank account of the appellant maintained with Vaish Co-Operative Adarsh Bank Limited (A/c. No. 999) in the block assessment proceedings and having passed a speaking order without making any addition cannot, in law, resort to the provisions of section 148 for assessing the same in the regular ....
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.... assessee had specifically brought to the notice of AO that the law laid down by the Hon'ble Supreme Court in the case of G.K.N. Driveshafts (India) Ltd. v. ITO (2003) 259 ITR 19 (SC) makes it mandatory on the part of the Assessing Officer to dispose off the objections regarding reopening of the assessment by way of speaking order before proceeding with the reassessment proceedings. However the ld. Assessing Officer neither disposed of the assessee's objection nor dealt with the issue of validity of reopening in the original assessment order. In this background the Hon'ble Tribunal set aside the matter to the file of the Assessing Officer after observing and holding as under:- "We remit the matter back to the file of the AO for pas....
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....e's objections on validity of reopening u/s 147 as per the law laid down by the Hon'ble Supreme Court in case of G.K.N. Driveshafts (India) Ltd. v. ITO (supra), the entire reassessment proceedings gets vitiated. In support, he strongly relied upon the judgment of Hon'ble Delhi High Court in the case of Pr.CIT vs. Tupperware India (P) Ltd. reported in (2016) 284 CTR 68 (Del) and also the decision of ITAT Delhi Bench in case of Suresh Chandra in ITA No. 3061/Del/2012 order dated 13.3.2015. Thus, he submitted that the entire reassessment order should be quashed. 4. On the other hand the ld. DR submitted that in pursuance of the Hon'ble Tribunal's order, the Assessing Officer gave opportunities to the assessee to explain its case, howeve....
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....d to any of the notices by the AO, therefore, AO is justified in his approach. Such a contention cannot be upheld, because even if the assessee had not complied with notices in the set aside proceedings, however the Assessing Officer was legally bound to dispose off the objections which was filed earlier in response to notice u/s 148 and was there on assessment records before him as per the directions of the Tribunal. Such non-compliance of direction of Tribunal and also noncompliance of the law laid down by the Hon'ble Apex Court, only leads to vitiating of the entire reassessment proceedings. It is well settled law that the reopening of the assessment u/s 147 and issuance and service of notice u/s 148 is a jurisdictional matter and whenev....
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....in fact not disposed of the objections by a speaking order. Nevertheless, the CIT (A) held that the said defect "does not make the assessment order illegal and hence it cannot be quashed. It is a technical mistake which is curable." 5. The Court is of the considered view that after having correctly understood the decision of the Supreme Court in G.K.N. Driveshafts (India) Ltd. (supra) as mandatorily requiring the AO to comply with the procedure laid down therein and to dispose of the objections to the reopening order with a speaking order, the CIT (A) committed an error in not quashing the reopening order and the consequent assessment." Further this Tribunal in the case of Suresh Chandra (supra) following various decisions of th....
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....th the Assessing Officer to form an opinion that there is escapement of income from assessment and in absence of reasons having direct link with the formation of the belief, the writ petition filed by the petitioner is maintainable. The Assessing Officer is mandated to decide the objection to the notice under sec. 148 and supply or communicate it to the assessee. The assessee gets an opportunity to challenge the order in a writ petition. Thereafter the Assessing Officer may pass the reassessment order. We hold that it was not open to the Assessing Officer to decide the objection to noticeunder sec. 148 by a composite assessment order. The Assessing Officer was required to, first decide the objection of the assessee filed under sec. 148 and ....