M/s. Shiva Rubber Industries, New Delhi V. ITO, Gurgaon

ITA 2212/DEL/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3599 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 20-04-2017
• Assessment Year: 2002-2003
• Appeal Filed On: 15-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BEDOBANI CHAUDHURI
• Assessee Lawyers: DR RAKESH GUPTA
• Keywords: Reopening of assessment
• Section: 143(3); 142(1); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC NEW DELHI BEFORE SHRI B.P. JAIN, ACCOUNTANT MEMBER ITA NO.2212/DEL/2015 ASSESSMENT YEARS 2002-03 M/S. SHIVA RUBBER INDUSTRIES, HARI NAGAR, KHANDSA ROAD, GURGAON. PAN: AAEFS 7721G VS. INCOME TAX OFFICER, WARD-2(2), GURGAON. (APPELLANT) (RESPONDENT) ASSESSEE(S) BY : DR. RAKESH GUPTA, ADV. AND SHRI SOMIL AGARWAL, ADV. REVENUE BY : MS. BEDOBANI CHAUDHURI, SR.D.R. / DATE OF HEARING : 20/04/2017 / DATE OF PRONOUNCEMENT: 25/04/2017 ORDER THIS APPEAL OF THE ASSESSEE ARISES FROM THE ORDER OF LEARNED CIT(A)-I, GURGAON, VIDE ORDER DATED 11.02.2015 FOR THE ASSESS MENT YEAR 2002-03. 2. THE ASSESSEE HAS RAISED AS MANY EIGHT GROUNDS OF APPEAL, I.E., THE LEGAL GROUNDS AS WELL AS GROUNDS ON MERIT. 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANC E OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACT ION OF LD. ASSESSING OFFICER IN FRAMING IMPUGNED ASSESSMENT ORDER WITHOUT ASSUMING JURISDICTION AS PER LAW AND WITHOUT SERVING THE MANDATORY NOTICES UNDER SECTION S 142(1), 148 AND 143(2) OF THE INCOME TAX ACT, 1961. 2. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACT ION OF LD. ASSESSING OFFICER IN FRAMING IMPUGNED ASSESSMENT ORDER WITHOUT COMPLYING THE MANDATORY CONDITIONS OF SECTION 147 TO 153 OF THE INCOME TAX ACT, 1961 A ND REOPENING OF THE CASE IS BAD IN LAW AND BEYOND THE JURISDICTION OF THE LD. A SSESSING OFFICER. 3. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCE OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACT ION OF LD. ASSESSING OFFICER IN FRAMING THE IMPUGNED ASSESSMENT BEING BEYOND JURISD ICTION, BAD IN LAW, ILLEGAL, UNJUSTIFIED, AGAINST THE PRINCIPLES OF NATURAL JUST ICE AND VOID AB INITIO. ITA NO.2212/DEL/2015 2 3. I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED T HE FACTS OF THE CASE. THE ISSUE AT THE OUTSET IS OF TWO FOLDS, FIRSTLY WH ETHER THE ASSUMPTION OF JURISDICTION BY THE ASSESSING OFFICER WAS LEGAL IN REOPENING ASSESSMENT U/S.147 OF THE ACT OR NOT. IN THIS REGARD, LEARNED COUNSEL FOR THE ASSESSEE, DR. RAKESH GUPTA, ADVOCATE INVITED MY ATTENTION AT PAGE 12 OF THE ASSESSING OFFICERS ORDER, PARAGRAPH 5.1 OF THE ORD ER, WHICH IS REPRODUCED FOR THE SAKE OF CONVENIENCE AS UNDER: 5.1 REGARDIN G REOP E NING OF THE CASE : T HE NOTICE U/ S 148 WAS ISSUED AFTER TAKING APPROVAL OF ADDITIONAL CIT AND WAS DULY SERVED UPON ASSESSEE ON 30 . 03 . 2007. THE REASONS WERE BASED ON THE MATERIAL COLLECTED BY AO IN COURSE OF REASSESSMENT PROC E EDINGS FOR THE ASSESSMENT YEAR 2003 - 04. THE COPY OF REASONS WERE PROVIDED TO ASSESSEE I N THE COURSE OF ORIGINAL R EASSESSMENT PROCEEDINGS ON 07 . 12.2007 VIDE ORDERSHEET ENTRY DATED 07 . 12 . 2007, IN THE C O URSE OF APPELLANT PROCEEDINGS AS WELL AS IN THE COURSE OF PRESENT PROCEEDINGS . MORE PARTICULARLY ASSESSEE WAS PROVIDED WITH A COPY OF REASONS VIDE NOTICE DATED 2 4.12.2010. ASSESSEE NEITHER IN COURSE OF O R IGINAL REASSESSMENT PR O CEEDINGS NOR I N COURSE OF PRESENT PROCEEDINGS OBJECTED EVEN ONCE ON T HE VALIDITY OF REOPENING. MATTER HAS ALSO BEEN DISCUSSED BY CIT A PPE A L P ANCHKULA IN APPEAL NO . 14 2 /GGN/07 - 08 DATED 01.12.2008 IN P A RA 4 . 4 , 4.5 AND 4 . 6 . IT HAS BEEN HELD BY THE CIT APPEAL, P ANCHKULA THAT AO HAS RIGHTLY I NVOKED THE PROVISIONS OF SEC 147 AND REOPENING OF ASSESSMENTS ARE JUSTIFIED . 4. DR. GUPTA INVITED MY ATTENTION TO THE PROVISIONS CONTAINED IN SECTION 151. 151. SANCTION FOR ISSUE OF NOTICE- (1) IN A CASE W HERE AN ASSESSMENT ORDER UNDER SUB-SECTION (3) OF SECTION 143 OR SECTION 147 HAS B EEN MADE FOR THE RELEVANT ASSESSMENT YEAR, NO NOTICE SHALL BE ISSUED UNDER SE CTION 148 BY AN ASSESSING OFFICER, WHO IS BELOW THE RANK OF ASSISTANT COMMISS IONER OR DEPUTY COMMISSIONER, UNLESS THE JOINT COMMISSIONER IS SATI SFIED ON THE REASONS RECORDED BY SUCH ASSESSING OFFICER THAT IT IS A FIT CASE FOR THE ISSUE OF SUCH NOTICE: PROVIDED THAT, AFTER THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR, NO SUCH NOTICE SHALL BE ISSUED UNL ESS THE PRINCIPAL CHIEF COMMISSIONER OR CHIEF COMMISSIONER OR PRINCIPAL COM MISSIONER OR COMMISSIONER IS SATISFIED, ON THE REASONS RECORDED BY THE ASSESSING OFFICER AFORESAID, THAT IT IS A FIT CASE FOR THE ISSUE OF S UCH NOTICE. (2) IN A CASE OTHER THAN A CASE FALLING UNDER SUB-S ECTION (1), NO NOTICE SHALL BE ISSUED UNDER SECTION 148 BY AN ASSESSING OFFICER, W HO IS BELOW THE RANK OF JOINT COMMISSIONER, AFTER THE EXPIRY OF FOUR YEARS FROM T HE END OF THE RELEVANT ASSESSMENT YEAR, UNLESS THE JOINT COMMISSIONER IS S ATISFIED, ON THE REASONS ITA NO.2212/DEL/2015 3 RECORDED BY SUCH ASSESSING OFFICER, THAT IT IS A FI T CASE FOR THE ISSUE OF SUCH NOTICE 4.1 FROM THE PROVISIONS OF SECTION 151(2), IT IS EV IDENT THAT IF THE CASE IS REOPENED BY ANY ASSESSING OFFICER WHO IS BELOW THE RANK OF JOINT COMMISSIONER WITHIN FOUR YEARS NO APPROVAL FROM THE HIGHER AUTHORITY IS REQUIRED. THE OFFICER BELOW THE RANK OF THE JOINT C OMMISSIONER ARE INCOME TAX OFFICER, ACIT, DCIT TO REOPEN THE ASSESSMENT WI THIN FOUR YEAR U/S.151(2) MANDATORILY DID NOT HAVE ANY APPROVAL FR OM THEIR SUPERIOR AUTHORITY. THE RELIANCE WAS PLACED ON THE DECISION IN THE CASE OF S. SEWA SINGH GILL VS. CIT (1962) 46 ITR 0152 HIGH COURT OF PUNJAB AT DELHI PLACED AT PAPER BOOK PAGE 247 TO 250 WHERE IT HAS B EEN HELD THAT COMPETENCY OF ITO CANNOT BE DOUBTED AND CHALLENGED AS THE ASSESSMENT DRAFTED BY THE ITO IS FINAL ASSESSMENT AND THE CIT( A) MAKING THE APPROVAL REGARDING ASSESSMENT IS NOT VALID. THE FACTS OF THE CASE AND THE DECISIONS RELEVANT PART ARE REPRODUCED BELOW: 'REFERENCE CORRESPONDENCE RESTING WITH THE I. T. O' S LETTER NO. 1335, DATED THE 23RD OF MARCH, 1954. WILL THE I. T. O. PLEASE REPORT IMMEDI ATELY WHETHER THE PENDING ASSESSMENT FOR THE YEAR 1945-46 IN THE ABOVE CASE HAS ALREADY BEEN COMPLETED? IF NOT, HE SHOULD COMPLETE THE SAME WITHOUT FURTHER DELAY UNDER INTIM ATION TO THIS OFFICE. THE DRAFT ASSESSMENT ORDER MAY. HOWEVER, BE GOT APPROVED BY T HE I. A. C. BEFORE FINALISING THE SAID ASSESSMENT.' THIS WAS FOLLOWED BY A FURTHER LETTER DATED THE 26T H OF MAY, 1954, FROM THE INSPECTING ASSISTANT COMMISSIONER TO THE INCOME-TAX OFFICER WH ICH READS - 'THE DRAFT ASSESSMENT ORDER IN THE CASE NOTED ABOVE HAS NOT SO FAR BEEN RECEIVED IN THIS OFFICE FOR MY APPROVAL. THE I. T. O. IS THEREFORE R EQUESTED TO SUBMIT THE SAME WITHOUT FURTHER DELAY.' IT WAS THEN THAT THE ASSESSMENT ORDER WAS SENT TO T HE INSPECTING ASSISTANT COMMISSIONER BY THE INCOME-TAX OFFICER WITH A COVERING LETTER AL SO DATED THE 26TH OF MAY, 1954, WHICH, READS - 'I HAVE THE HONOUR TO SUBMIT HEREWITH THE DRAFT ASS ESSMENT ORDER FOR 1945-46 IN THE CASE OF SARDAR SEWA SINGH GILL FOR FAVOUR OF APPROVAL. T HE ORDER IS TO BE APPROVED BY YOU AS DIRECTED TO THE UNDERSIGNED IN C. I. T.'S NO. K-185 (45)/ 52-53/2070 DATED THE 8TH OF MAY, 1954.' ITA NO.2212/DEL/2015 4 THE ACCOMPANYING ASSESSMENT ORDER IS NEITHER SIGNED NOR DATED BY THE INCOME-TAX OFFICER, THOUGH NOWHERE IN THE ORDER ITSELF IS, IT DESCRIBED AS MERELY A DRAFT ORDER. THE QUESTION WHICH ARISES IS WHETHER THIS ASSESSMEN T ORDER OR DRAFT ORDER AS IT IS DESCRIBED BY THE RESPONDENTS AMOUNTS TO AN ASSESSME NT MADE BY THE INCOME-TAX OFFICER UNDER SECTION 23 OF THE ACT OR WHETHER, AS WAS CONTENDED ON BEHALF OF THE RESPONDENTS, THERE WAS NO ASSESSMENT. THE CONTENTION OF THE PETI TIONER IN THIS RESPECT MAY BE SUMMED UP AS BEING THAT THERE IS NO LEGAL WARRANT WHATEVER IN THE INCOME-TAX ACT OR ANY OTHER ACT FOR AN ASSESSMENT TO BE MADE SUBJECT TO THE APP ROVAL OF A SUPERIOR OFFICER OF THE OFFICER WHO IS TO MAKE THE ASSESSMENT, AND THAT THE REFORE, ONCE THE INCOME-TAX OFFICER HAD MADE HIS ASSESSMENT, IT AT ONCE BECAME FINAL AN D COULD NOT BE CHANGED BY HIM EVEN IF THE APPROVAL OF THE SUPERIOR OFFICER WHICH WAS W RONGLY ORDERED IN THIS CASE WAS WITHHELD. THIS PRINCIPLE WAS FOLLOWED BY ME IN C. W. NO. 6 OF 1953. EDWARD KEVENTER (SUCCESSORS) LTD. V. THE STATE OF DELHI , DECIDED ON THE 20TH OF OCTOBER, 1953, IN WHICH TH E AWARD O A LAND ACQUISITION COLLECTOR WHICH HAD ACTUALLY BEEN APPROVED BY THE COLLECTOR OF DELHI AND FILED IN THE OFFICE HAD BEEN WITHDRAWN AT THE I NSTANCE OF THE CHIEF COMMISSIONER AND AN AWARD BY WHICH THE COMPENSATION WAS VERY HEAVILY REDUCED WAS SUBSTITUTED. I HELD IN THAT CASE THAT THE AWARD BECAME THE AWARD OF THE CO LLECTOR AS SOON AS IT WAS FILED IN THE OFFICE AND THAT ALTHOUGH THE APPROVAL OF THE COLLEC TOR HAD IN FACT BEEN OBTAINED, THIS WAS UNNECESSARY AND UNWARRANTED. APART FROM THIS THERE IS NO DEARTH OF AUTHORITIES T O THE EFFECT THAT WHERE UNDER A STATUTE IT IS THE DUTY OF A PARTICULAR OFFICER TO DECIDE A CER TAIN MATTER THE MATTER MUST BE DECIDED ACCORDING TO THE JUDGMENT OF THAT OFFICER AND NOT U NDER THE DIRECTIONS OF A SUPERIOR. IN THE PRESENT CASE THE QUESTION OF THE SUBMISSION OF THE ASSESSMENT ORDER OF THE INCOME- TAX OFFICER FOR THE APPROVAL OF THE INSPECTING ASSI STANT COMMISSIONER APPEARS TO HAVE ONLY CREPT IN AT A LATE STAGE. IN FACT IT DOES NOT SEEM TO HAVE BEEN CONTEMPLATED UNTIL ABOUT THREE MONTHS AFTER THE PETITIONER HAD APPEARE D BEFORE THE INCOME-TAX OFFICER AND, BECAUSE OF COMPLAINTS FROM THE PETITIONER REGARDING THE DELAY, THE COMMISSIONER THOUGHT FIT BY HIS LETTER OF THE 8TH OF MAY, 1954, TO DIREC T THE OBTAINING OF THE APPROVAL OF THE INSPECTING ASSISTANT COMMISSIONER BEFORE THE AWARD WAS FINALISED. IN MY OPINION THIS DIRECTION MUST BE HELD TO BE ILLEGAL AND UNWARRANTE D....... 12. TECHNICALLY THIS ARGUMENT APPEARS TO ME TO BE C ORRECT, BUT THE CASE APPEARS TO DEPEND MAINLY ON THE FACT THAT QUITE EVIDENTLY THE ORDER OF ASSESSMENT IN THIS CASE IS THE BEST JUDGMENT OF THE INCOME-TAX OFFICER ON THE MATT ERS BEFORE HIM AND THAT THIS WAS INTENDED TO BE HIS FINAL DECISION IN THE MATTER UNL ESS HE WAS ORDERED TO REVISE IT BY, THE INSPECTING ASSISTANT COMMISSIONER AND IN MY OPINION ONCE THE INCOME-TAX OFFICER HAD GIVEN HIS CONSIDERED JUDGMENT ON THE MATTERS WHICH HE WAS CALLED ON TO DECIDE, THE PROCESS OF SUBMITTING HIS ORDER FOR THE APPROVAL OF HIS SUPERIOR OR, AS THE CASE MAY BE, FOR REVISION CARRIED OUT UNDER HIS DIRECTIONS, WAS SOMETHING WHICH SIMPLY COULD NOT BE DONE, AND IN MY OPINION THE PRINCIPLE LAID DOWN IN MOTIVALA'S CASE, ILR 36 BOM 599 APPLIES TO THE PRESENT CASE. 13. ONE ARGUMENT ADVANCED ON BEHALF OF THE RESPONDE NTS WAS THAT UNDER THE PROVISIONS OF SECTION 29 OF THE ACT ANY ASSESSMENT ORDER MADE BY AN INCOME- TAX OFFICER MUST BE FOLLOWED BY THE SERVICE ON THE ASSESSEE OF A NOTICE OF DEMAND, AND IT IS CONTENDED THAT THE ASSESSMENT ORDER IN THIS CASE COULD NOT BE REGARDED AS AN ASSESSMENT BECAUSE IT WAS NOT FOLLOWED BY SUCH A NOTICE OF DEMAND. ACTUALLY IN TH E PRESENT CASE THE NOTICE WHICH WOULD ITA NO.2212/DEL/2015 5 FOLLOW FROM THE TERMS OF THE ASSESSMENT WOULD BE ON E INTIMATING A REFUND, BUT WHETHER THE NOTICE WAS TO BE FOR A DEMAND OR A REFUND IS IM MATERIAL. THE SAME ARGUMENT APPLIES AS IN MOTIVALA'S CASE, ILR 36 BOM 599 THAT THE ONLY THING WHICH PREVENTED THE INCOME- TAX OFFICER FROM GIVING EFFECT TO THE TERMS OF HIS ASSESSMENT ORDER WITHOUT DELAY WAS THE ORDER FOR THE OBTAINING OF THE PRIOR APPROVAL OF TH E INSPECTING ASSISTANT COMMISSIONER, WHICH IS THE MAIN BONE OF CONTENTION IN THE PETITIO N AND WHICH I HAVE ALREADY HELD TO BE ILLEGAL. 5. LEARNED COUNSEL FOR THE ASSESSEE ALSO RELIED UPO N THE DECISION IN THE CASE OF CIT VS. SPLS SIDDHARTHA LTD. (2012) 345 IT R 0223 (DEL.). THE RELEVANT DECISION IN THE SAID CASES IS REPRODUCED H EREINBELOW: 6. IT IS RELEVANT TO POINT OUT THAT SUB-SECTION (1 ) AND SUB-SECTION 2 OF SECTION 151 OF THE ACT ARE TWO INDEPENDENT PROVISIONS. THE DEFI NITION OF JOINT COMMISSIONER IS CONTAINED IN SECTION 2(28C) AND THE DEFINITION OF C OMMISSIONER GIVEN IN SECTION 2(16), WHICH ARE AS UNDER: JOINT COMMISSIONER MEANS A PERSON APPOINTED TO BE A JOINT COMMISSIONER OF INCOME TAX OR AN ADDITIONAL COMMISSIONER OF INCOME TAX UNDER SUB-SECTION (1) OF SECTION 117. COMMISSIONER MEANS A PERSON APPOINTED TO BE A COM MISSIONER OF INCOME TAX UNDER SUB-SECTION(1) OF SECTION 117. 7. SECTION 116 OF THE ACT ALSO DEFINES THE INCOME T AX AUTHORITIES AS DIFFERENT AND DISTINCT AUTHORITIES. SUCH DIFFERENT AND DISTINCT A UTHORITIES HAVE TO EXERCISE THEIR POWERS IN ACCORDANCE WITH LAW AS PER THE POWERS GIV EN TO THEM IN SPECIFIED CIRCUMSTANCES. IF POWERS CONFERRED ON A PARTICULAR AUTHORITY ARE ARROGATED BY OTHER AUTHORITY WITHOUT MANDATE OF LAW, IT WILL CRE ATE CHAOS IN THE ADMINISTRATION OF LAW AND HIERARCHY OF ADMINISTRATION WILL MEAN NO THING. SATISFACTION OF ONE AUTHORITY CANNOT BE SUBSTITUTED BY THE SATISFACTION OF THE OTHER AUTHORITY. IT IS TRITE THAT WHEN A STATUTE REQUIRES, A THING TO BE DONE IN A CERTAIN MANNER, IT SHALL BE DONE IN THAT MANNER ALONE AND THE COURT WOULD NOT E XPECT ITS BEING DONE IN SOME OTHER MANNER. IT WAS SO HELD IN THE FOLLOWING DECIS IONS: (I) CIT VS. NAVEEN KHANNA (DATED 18.11.2009 IN ITA NO.21/2009 (DHC). (II) STATE OF BIHAR VS. J.A.C. SALDANNA & ORS. AIR (1980) SC 326. (III) STATE OF GUJARAT VS. SHANTILAL MANGALDAS, AIR (1969) SCN 634. 8. THUS, IF AUTHORITY IS GIVEN EXPRESSLY BY AFFIRMA TIVE WORDS UPON A DEFINED CONDITION, THE EXPRESSION OF THAT CONDITION EXCLUDE S THE DOING OF THE ACT AUTHORISED UNDER OTHER CIRCUMSTANCES THAN THOSE AS DEFINED. IT IS ALSO ESTABLISHED PRINCIPLE OF LAW THAT IF A PARTICULAR AUTHORITY HAS BEEN DESIGNATED TO RECORD HIS/HER SATISFACTION ON ANY PARTICULAR ISSUE, THEN IT IS THAT AUTHORITY ALONE WHO ITA NO.2212/DEL/2015 6 SHOULD APPLY HIS/HER INDEPENDENT MIND TO RECORD HIS /HER SATISFACTION AND FURTHER MANDATORY CONDITION IS THAT THE SATISFACTION RECORD ED SHOULD BE INDEPENDENT AND NOT BORROWED OR DICTATED SATISFACTION. LAW IN THIS REGARD IS NOW SELL- SETTLED. IN SHEO NARAIN JAISWAL & ORS. VS. ITO, 176 ITR 35 (PAT.), IT WAS HELD: WHERE THE ASSESSING OFFICER DOES NOT HIMSELF EXERC ISE HIS JURISDICTION UNDER SECTION 147 BUT MERELY ACTS AT THE BEHEST OF ANY SU PERIOR AUTHORITY, IT MUST BE HELD THAT ASSUMPTION OF JURISDICTION WAS BAD FOR NON SAT ISFACTION OF THE CONDITION PRECEDENT. 5. THE APEX COURT IN THE CASE OF ANIRUDH SINHJI KAR AN SINHJI JADEJA VS. STATE OF GUJARAT, (1995) 5 SCC 302 HAS HELD THAT IF A STATUT ORY AUTHORITY HAS BEEN VESTED WITH JURISDICTION, HE HAS TO EXERCISE IT ACCORDING TO ITS OWN DISCRETION. IF DISCRETION IS EXERCISED UNDER THE DIRECTION OR IN C OMPLIANCE WITH SOME HIGHER AUTHORITIES INSTRUCTION, THEN IT WILL BE A CASE OF FAILURE TO EXERCISE DISCRETION ALTOGETHER. 6. WE ARE, THEREFORE, OF THE OPINION THAT THE TRIBU NAL HAS RIGHTLY DECIDED THE LEGAL ASPECT, KEEPING IN VIEW WELL ESTABLISHED PRINCIPLES OF LAW LAID DOWN IN CATENA OF JUDGMENTS INCLUDING THAT OF THE SUPREME COURT. 6. IN THE CIRCUMSTANCES AND THE FACTS OF THE PRESEN T CASE, THE AO HAS ACTED AT THE BEHEST OF THE SUPERIOR AUTHORITY AND A CCORDINGLY ASSUMPTION OF JURISDICTION WAS BAD. ACCORDINGLY, IT WILL BE A CAS E OF FAILURE TO EXERCISE THE DISCRETION ALL TOGETHER AND SUCH DIRECTION IS HELD TO BE ILLEGAL AND UNWARRANTED, THEREFORE, ORDER SO PASSED BY THE AO I S DIRECTED TO BE QUASHED. 7. SECONDLY, THE PRESENT MATTER WAS RESTORED BACK T O THE FILE OF THE AO BY THE ITAT IN ITA NO.165/DEL/2009 VIDE ORDER DATED 10 TH SEPTEMBER, 2009 AND THE ORDER IS ON RECORD. THE RELEVANT PARAGRAPH IS REPRODUCED HEREINBELOW: FIRSTLY, WE SHALL PROCEED TO SEE AS TO WHETHER THE ASSESSING OFFICER HAS COMPLIED THE PROVISIONS OF SECTION 147 TO 151 OF THE ACT, AS PER LAW OR NOT . IN THIS CASE, THE NOTICE U/S. 148 WAS ISSUED ON 28.93.2007, AFTER REC ORDING THE REASONS, WHICH ARE MENTIONED IN THE ASSESSMENT ORDER ITSELF . THE AO THEREAFTER ISSUED NOTICED U/S. 142(1) TO THE ASSESSEE ON 01. 11 . 2007, IN REPLY - THERETO, THE ASSESSEE REQUESTED THE AO TO FURNISH THE COPY OF REASONS RECORDED. THEREAF TER, THE COPIES OF REASONS WERE FURNISHED TO THE ASSESSEE ON 07.12.2007 . THE FILED ITS REPLY ON 27.12 . 2007. THE CASE WAS FIXED FOR HEARING ON 31.12.2007, AND THEREAFTER , THE AO COMPLETED THE ASSESSMENT ON THE VERY SAME DAY I.E . 31 . 12.2007. FROMTHE PERUSAL OF THE ITA NO.2212/DEL/2015 7 ASSESSMENT ORDER, IT S IS , THUS CLEAR THAT THE ASSESSMENT HAS BEEN COMPLETED W ITHIN . THREE DAYS A F T E R TH E RECEIVING THE ASSESSEE'S REPLY ON 27 . 12.2007 . THE ASSESSEE'S OBJECTIONS TO THE REASONS RECORDED HAS NOT BEEN CON SIDERED AND DECIDED BY THE AO BEFORE HE MAKES THE .ASSESSMENT U/S. 147 OF THE ACT . WE, THEREFORE, FIND THAT THE SPIRIT OF THE JUDGMENT OF HON'BLE SUPREME COURT IN THE CASE OF GKW DRIVESHAFT LIMITED REPORTED IN 251 ITR , 19 (SC) HAS NOT BEEN COMPILED WITH . AT THIS STAGE, THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THI S IRREGULARITY CAN BE CURED IF THE MATTER IS RESTORE BACK TO THE FILE OF THE AO , DIRECTING HIM TO DEAL WITH THE OBJECTIONS RAISED BY THE ASSESSEE BEFORE PASSING THE ASSESSMEN T ORDER ON MERIT . IN THIS CONNECTION, LD. COUNSEL. 9. IN THE RESULT, BOTH THE APPEALS FILED BY THE ASS ESSEE AS WELL AS BY THE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSE. 7.1 FROM THE SAID ORDER OF THE ITAT, IT IS EVIDENT THAT OBJECTIONS OF THE REASONS RECORDED WAS NOT CONSIDERED AND DECIDED BY THE AO. THE AO MAKES THE ASSESSMENT U/S.147 OF THE ACT. LEARNED COUNSEL FOR THE ASSESSEE RELIED UPON THE DECISION IN THE CASE OF M/S. S. POWER PVT. LTD. VS. ITO IN ITA NO.6544/DEL/2014 DATED 29.04.2016 AT PAGES 288 TO 3 00 AND THE RELEVANT DECISION IN PARAGRAPH 16 IS REPRODUCED HEREINBELOW: IN THE PRESEN T CASE ALSO THERE WAS A FAILURE ON T HE PART OF THE AO TO COMPLY WITH THE MANDATORY REQUIREMENT OF DISPOS I NG OFF TH E OBJ ECTIONS OF THE ASSESSEE , THEREFORE , THE REO PENING W A S NOT VALID . ACC O RD INGLY , IT CAN SAFELY BE HELD THAT THE REOP E NING DO N E B Y THE A O 147 R . W. S . 14 8 OF T H E ACT ON THE BASIS OF I N CO RR ECT R EASONS A ND WITH O U T D IS POSING OFF THE OBJECTI O NS R A ISED B Y T H E ASSESS E E WA S IN VALI D . IN THAT V I E W OF THE MATT E R T H E I M P UGNED O RDE R PASSED BY THE LD. CI T (A) IS SE T ASIDE AND T HE R EASSES S M EN T FRAM ED BY THE AO U / S.147 R.W.S. 143(3) OF THE ACT IS QUASHED. 7.2 THE RELIANCE IN THE SAID DECISION WAS PLACED IN THE CASE OF PCIT VS. TUPPER WARE INDIA PVT. LTD. REPORTED IN (2016) 284 CTR 68 (DEL) AVAILABLE AT PAGES 251 TO 255 AND THE RELEVANT PARAGRAPH AT P AGE 253. THE RELEVANT PARAGRAPH OF THE DECISION IS REPRODUCED HEREINBELOW . 6. 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 PRO CEDURE LAID DOWN THEREIN AND TO DISPOSE OF THE OBJECTIONS TO THE REOPENING ORDER WITH A SPEAKING ORDER, THE ITA NO.2212/DEL/2015 8 CIT(A) COMMITTED AN ERROR IN NOT QUASHING THE REOPE NING ORDER AND THE CONSEQUENT ASSESSMENT. 8. IN THE CIRCUMSTANCES AND FACTS OF THE CASE, THE IDENTICAL FACTS ARE THERE IN THE PRESENT CASE AND THE AO HAS NOT DISPOSED OF THE OBJECTIONS OF THE REASONS RAISED BY THE ASSESSEE AS MENTIONED BY THE ITAT IN THE FIRST ROUND, AND THEREFORE, NECESSARILY THE ASSESSMENT IS LIABLE TO BE QUASHED. ACCORDINGLY, WE ORDER TO QUASH THE SAID ASSESSMENT/ RE-ASSESSMENT. THUS ON BOTH THE COUNTS LEGALLY THE ASSESSEE SUCCEEDS ON LE GAL GROUNDS AND GROUNDS NO.1, 2 AND 3 ARE ALLOWED. SINCE, THE ASSESSEE SUCC EEDS ON LEGAL GROUNDS. THE GROUNDS ON MERIT BECOME ACADEMIC IN NATURE, THE REFORE, DO NOT REQUIRE ANY ADJUDICATION. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IN ITA IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY 25 TH APRIL, 2017 SD/- (B.P. JAIN) ACCOUNTANT MEMBER DATED: 25/04/2017 PRABHAT KUMAR KESARWANI, SR.P.S. COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(APPEALS) 5.DR: ITAT ASSTT. REGISTRAR, ITAT, NEW DELHI