BISWAJIT BEHERA V. INCOME TAX OFFICER, WARD-4(2), BBSR

ITA/17/2024

AI Insights

The case involves Biswajit Behera, the appellant, who appealed against the order of the Income Tax Appellate Tribunal, Cuttack Bench, which pertained to the assessment year 2012-13. The core issue was the reopening of the assessment by the Income Tax Officer under section 148 of the Income Tax Act, 1961, and the subsequent handling of the appellant's objections. The Tribunal had restored the re-assessment proceedings to the AO, directing him to first address the objections raised by the appellant against the reopening of the assessment. The appellant contested that his objections were not considered before the assessment was made, relying on the Supreme Court's decision in GKN Driveshafts (India) Ltd. v. ITO. The respondent argued that the Tribunal's decision was correct and that the appellant could participate in the proceedings to raise further objections.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 746751 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 08-10-2024
• Assessment Year: misc
• Other Referred Cases: GKN Driveshafts (India) Ltd. v. ITO
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: A KEDIA
• Assessee Lawyers: C PARIDA
• Keywords: Income tax appellate tribunal; Objection; Re-assessment; GKN Driveshafts (India) Ltd. v. ITO
• Section: 148

Judgement Text

" IN THE HIGH COURT OF ORISSA AT CUTTACK ITA No.17 of 2024 Biswajit Behera …. Appellant -versus- Income Tax Officer, Ward-4(2), Bhubaneswar …. Respondent Advocates appeared in this case: For Appellant : Mr. C. Parida, Advocate For Respondent : Mr. A. Kedia, Jr. Standing Counsel CORAM: THE HON’BLE MR. JUSTICE ARINDAM SINHA AND THE HON’BLE MR. JUSTICE SANJAY KUMAR MISHRA ----------------------------------------------------------------------- Dates of hearing: 4th and 8th October, 2024 Date of judgment: 8th October, 2024 ----------------------------------------------------------------------- ARINDAM SINHA, J. 1. Mr. Parida, learned advocate appears on behalf of appellant- assessee. He submits, his client seeks to prefer appeal against order dated 4th January, 2024 made by the Income Tax Appellate Tribunal, Cuttack Bench in ITA no.329/CTK/2023, pertaining to assessment year 2012-13. ITA no.17 of 2024 Page 2 of 4 2. Appeal before the Tribunal was against appellate order dated 21st September, 2023. On last day of the prescribed period, notice under section 148 in Income Tax Act, 1961 was issued to his client. He obtained reasons for belief and thereupon filed objection. Without considering and dealing with the objection, assessment order was made. The first appellate authority confirmed the assessment order, against which his client moved the Tribunal. 3. Mr. Parida submits, the Tribunal erred in restoring the re- assessment proceeding since his client’s objection to the reopening had not been dealt with by the Assessing Officer (AO). He relies on decision of the Supreme Court in GKN Driveshafts (India) Ltd. v. ITO, reported in (2003) 259 ITR 19 (SC). A substantial question of law arises on whether the Tribunal was correct in so restoring. He seeks admission of the appeal on a substantial question of law suggested in the memo or on any question as may be formulated by us. 4. Mr. Kedia, learned advocate, Junior Standing Counsel appears on behalf revenue and submits, the Tribunal committed no error in restoring the re-assessment proceeding. Appellant can participate in the restored proceeding as the Tribunal had also given liberty for him to take additional objection. In the circumstances, no question of law arises, let alone a substantial question. The appeal ITA no.17 of 2024 Page 3 of 4 be dismissed. 5. On query from Court, Mr. Parida submits, law prevailing and applicable to relevant assessment year did not provide for filing objection. He, however, reiterates that law stood declared by the Supreme Court on GKN Driveshafts (India) Ltd. (supra) and therefore question of law arises for admission of the appeal. 6. Paragraph-6 of impugned order is reproduced below: “6. I have considered the rival submission. A perusal of the facts in the present case clearly shows that the assessee has filed objection to the reopening of assessment on 25.07.2019. The assessment has been completed only on 13.12.2019. The Assessing Officer has not disposed of the objection filed by the assessee on 25.07.2019. Hence, an irregularity has taken place at the point where the Assessing Officer has proceeded with the assessment without disposing the objection raised by the assessee. This being so, in view of the principles laid down by the Hon’ble Supreme Court in the case of GKN Driveshafts (India) Ltd. (supra), the issues in this appeal are restored to the file of the Assessing Officer for re-adjudication after disposing the objection raised by the assessee against reopening. Liberty is granted to the assessee to raise any further objection he may have in the course of ITA no.17 of 2024 Page 4 of 4 set aside assessment proceedings.” (emphasis supplied) We see that the Tribunal in following the declaration of law made by the Supreme Court, directed the AO to re-adjudicate upon first dealing with the objection. In event, consideration of the objection renders satisfaction to the AO that the reopening does not result in enhancement, the proceeding will be appropriately closed. 7. No substantial question of law arises for admission of the appeal. It is disposed of as above. (Arindam Sinha) Judge P.Pradhan (S.K. Mishra) Judge Digitally Signed Signed by: PRASANT KUMAR PRADHAN Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 08-Oct-2024 19:50:36 Signature Not Verified "