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Reassessment proceedings are bad in law in as much as the AO sought to reopen the assessment beyond a period of four years and not followed the procedures laid down in section 151(2) of the Act for issuing notice under section 148 of the Act.
Assessee-Company,engaged in the business of life insurance,filed its return of income on 29/10/2005 declaring total income at Rs.3 1.19 lakhs. The return was processed u/s. 143(1) of the Act on 30/03/2007.Later on a notice u/s 147 of the Act was issued by the AO.From the assessment records
At the time of hearing before us, it is submitted by the learned DR that the Assessing Officer had received definite information from the Director of Income Tax (Investigation), New Delhi with regard to accommodation entries being provided by various entry operators.
Reassessment order u/s 147 without first disposing of the preliminary objections raised by the assessee can not be sustained and is this liable to be quashed. Supreme Court in GKN Driveshafts (India) Ltd. vs. ITO & Ors. (2003) 259 ITR 19 had devised the process to be followed while carrying out assessment u/s 147.
In the present case, the submission of the assessee before the Tribunal, as recorded in paragraph 3 of the impugned order, is that the only reason which was given by the Assessing Officer for initiating reassessment proceedings was that the property was sold by the assessee for Rs.31 lacs
The assessee argues that the expression reasons to believe under Section 147 refers to objective circumstances. In the present case, the assessment was completed under Section 143 (3) after notice was issued under Section 142 (1) was issued and explanation sought in respect of all relevant matters.
Mr.Chhotaroy learned counsel for the revenue mentioned that the profit and loss account of the assessee as furnished by the petitioners would clearly indicate that the Assessing Officer had not applied his mind to the same.
On careful consideration of above contention, we are of the view that there may be a substantive assessment without any protective assessment but there can not be any protective assessment/addition without a substantive assessment/addition, meaning thereby there has to be some substantive assessment/addition first which enables the AO to make a protective assessment/addition.
The power of the assessing Officer under Section 147 of the Act is not in dispute. A challenge made to an order passed on the objections of the assessee would in effect is a challenge made to a notice under Section 148 of the Act. Such an order passed by the assessing officer is only at the stage of process of determination and not a determination by itself. The process of assessment is not required to be challenged before Court of law, as it is a still born child.
It is true that the reasons for initiating re-assessment proceedings do in fact state that there was a failure on the part of the Petitioner to disclose fully and truly all material facts necessary for its assessment.
