Kamlesh Kumar Agarwal Vs ITO (ITAT Delhi)
Facts- The assessee in the grounds of appeal challenged the very jurisdiction of the AO in reopening the assessment u/s 147 of the Act apart from various other legal grounds as well as grounds on merits.
The assessee vide letter dated 21.12.2015 objected for reopening of assessment. However, AO in the assessment order even though the objections raised by the assessee was extracted they were not disposed off by a speaking order.
Conclusion- Held that objections of the assessee on reopening of assessment by the AO in the assessment order, these objections were never disposed off in terms of the decision of Hon’ble Supreme Court in the case of GKN Driveshafts (India) Ltd. Vs. ITO [259 ITR 19].
Held that as AO did not comply with the procedure as laid down by the Hon’ble Supreme Court in the case of GKN Driveshafts (India) Pvt. Ltd. making the assessment as bad in law. Therefore, in view of the above discussion, I hold that the reassessment made by the AO is bad in law and accordingly the reassessment order is quashed. As the reassessment was held to be bad in law on the preliminary grounds and the very jurisdiction of initiation of proceedings u/s 148 of the Act the other grounds raised by the assessee are not gone into as they become academic at this stage.
FULL TEXT OF THE ORDER OF ITAT DELHI
This appeal is filed by the assessee against the order of the Ld. Commissioner of Income Tax (Appeals), Ghaziabad dated 06.12.2016 for the AY 2008-09. The assessee in his appeal raised the following grounds: –
1) “That having regard to the fact and circumstances of the case, Ld. CIT(A) has erred in law and on facts in confirming the action of Ld. AO in framing the impugned reassessment order as the assessment order was passed without complying with the mandatory conditions of section 147 to 151 of the Income Tax Act, 1961 and without recording valid reasons as per law and without obtaining valid approval as per law and in any case reopening of the assessment and framing of the reassessment order was contrary to law.
2) That in any view of the matter and in any case, action of Ld. C!T(A) in confirming the action of Ld. AO in reopening of the impugned assessment u/s 143(3)/147 is bad in law and against the facts and circumstances of the case.
3) That having regard to the facts and circumstances of the case, Ld. C!T(A) has erred in law and on facts in upholding the action of the Ld. AO in making an addition of Rs.37,00,000/- allegedly on account of bogus purchases and that too by recording incorrect facts and findings and by disregarding the evidences/submissions filed by the assessee and in violation of principles of natural justice.
4) That in any case and in any view of the matter, action of Ld. C!T(A) in confirming the addition of Rs.37,00,000/- is bad in law and against the facts and circumstances of the case.
5) That having regard to the facts and circumstances of the case, the Ld. C!T(A) has erred in law and on facts in confirming the action of the Ld. AO in passing the impugned order without giving adequate opportunity of being heard.
6) That in any case and in any view of the matter, action of Ld. CIT(A) in confirming the action of Ld. AO in making the impugned addition is bad in law and against the facts and circumstances of the case.
7) That the appellant craves the leave to add, alter or amend the grounds of appeal at any stage and all the grounds are without prejudice to each other.”
2. The assessee in the grounds of appeal challenged the very jurisdiction of the AO in reopening the assessment u/s 147 of the Act apart from various other legal grounds as well as grounds on merits.
3. The Ld. Counsel for the assessee at the outset submits that the AO who assumed jurisdiction to reopen the present assessment was not the AO who was having jurisdiction over the assessee. The Ld. Counsel submits that as the assessee was always assessed to tax by ITO, Ghaziabad as assessee has all along being filing his Income tax return at Ghaziabad which is evident from the copy of acknowledgement of return filed by the assessee for the assessment years 2008-09 and also 2006-07 as appearing at pages 1 & 85 of the Paper Book respectively. The Ld. Counsel for the assessee submits that in the instant case jurisdiction was assumed by the Ld. AO at New Delhi which is evident from the notice issued u/s 148 dated 30.03.2015 which is placed at page 3 of the Paper Book. Therefore, the Ld. Counsel submits that reopening by a Non-Jurisdictional Officer is bad in law. Ld. Counsel placed reliance on the following decisions:
