Case Law Details
Shri Gulab L. Bodke Vs ITO (ITAT Pune)
The assessee in present appeal has challenged the validity of assessment order primarily on the ground that the reasons for reopening were not provided to the assessee. A perusal of documents on record indicates that the reasons for reopening were not furnished to the assessee. The Revenue has not brought on record any document indicating that the reasons for reopening were ever furnished to the assessee. The Hon’ble Supreme Court of India in the case of GKN Driveshafts (India) Ltd. Vs. Income Tax Officer & Ors. (supra) has categorically held that the Assessing Officer is bound to furnish the reasons within a reasonable time on the request of assessee. In the present case we find that the assessee while replying to the notice u/s. 148 dated 20-03-2015 had specifically asked for the reasons for reopening vide communication dated 21-04-2015. Again notice u/s. 148 was issued to the assessee on 24-03-2015 the assessee vide communication dated 27- 10-2015 asked for the reasons for reopening. However, on both the occasions the Assessing Officer has failed to provide the reasons for reopening to the assessee.
The ld. DR has pointed that the assessee has not complied with the notice u/s. 148 as no return of income was filed in response to the notice u/s. 148 of the Act. The return dated 31-03-2013 which the assessee had requested to treat as return of income in response to the notice u/s. 148 was filed beyond the period of one year form the end of the assessment year. Hence, the same is nonest. We do not find merit in the submissions of ld. DR. Though the said return was filed by the assessee beyond the period of time frame as specified u/s. 139(5) of the Act, however, the same was filed much prior to the completion of assessment. Even if the said return was not considered by the Assessing Officer for the purpose of assessment, the same could have been treated as return in response to the notice u/s. 148 as requested by the assessee. Further, we find that the Assessing Officer never communicated to the assessee that the return filed on 31-03-2013 cannot be considered in proceedings u/s. 148 of the Act. Hence, the objections raised by the Department against the return dated 31-03-2013 are unsustainable. The Assessing Officer has passed the assessment order in violation of directions of Hon’ble Supreme Court of India in the case of GKN Driveshafts (India) Ltd. Vs. Income Tax Officer & Ors. (supra). The Hon’ble Jurisdictional High Court in the case of Commissioner of Income Tax Vs. Videsh Sanchar Nigam Ltd. (supra) has held that where the assessment order has been passed without providing the reasons for reopening to the assessee the reassessment order is not sustainable.
Hon’ble Jurisdictional High Court in the case of KSS Petron Private Ltd. Vs. Assistant Commissioner of Income Tax (supra) has held that when the assessment order is without jurisdiction and in violation of law laid down by the Hon’ble Apex Court in the case of GKN Driveshafts (India) Ltd. Vs. Income Tax Officer & Ors. (supra) there is no reason to restore the issue to the file of Assessing Officer to pass fresh order.
Accordingly, the impugned order is set aside.
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