Sri.Venkataramanappa , Bangalore V. The Income Tax Officer Ward-3(2)(3), Bangalore

ITA 304/BANG/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 4521 (ITAT-BANGALORE)
• Duration Of Justice: 3 year(s) 7 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-09-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 24-08-2021
• Assessment Year: 2009-2010
• Appeal Filed On: 02-02-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: H KABILA ITA T BE NG ALURU
• Keywords: Reopening of assessment; Sale consideration of property below Jantri Value; Capital asset; Reassessment proceedings; Set aside; Capital Gains
• Section: 50C; 2(14); 234B; 251; 191; 48; 13; 147; 148; 54

Judgement Text

+ IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. BEENA PILLAI , JUDICIAL MEMBER IT A NO. 304/ BANG / 2018 ASSESSMENT YEAR: 2009 - 10 SRI VENKATARAMANAPPA, KANMINIKE VILLAGE, KENGERI HOBLI, BANGALORE SOUTH TALUK, BANGALORE 560 039. PAN: BBAPV 2308 C VS. THE INCOME TAX OFFICER, WARD 3(2)(3), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : S HRI RAVI SHANKAR, ADVO CATE RESPONDENT BY : S MT. H. KABILA, ADDL.CIT(DR)(ITA T), BE NG ALURU. DATE OF HEARING : 2 7 . 0 8 .202 1 DATE OF PRONOUNCEMENT : 17 .0 9 .202 1 O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 01.12.2017 OF THE CIT(APPEALS)-3, BENGALURU FOR THE ASSESSMENT YEAR 2009-10 ON THE FOLLOWING GROUNDS:- 1. THE ORDERS OF THE AUTHORITIES BELOW IN SO FAR AS IT IS AGAINST THE APPELLANT IS OPPOSED TO LAW, EQUITY AND WEIGHT OF EVIDENCE PROBABILITIES, FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE APPELLANT DENIES HIMSELF LIABLE TO BE ASSESS ED TO A TOTAL INCOME OF RS. 1,62,50,800 / - BEING LONG TERM CAPI TAL GAINS AS AGAINST THE TOTAL INCOME RETURNED BY THE APPELLANT OF RS. NIL FOR ITA NO. 304/BANG/2018 PAGE 2 OF 17 THE IMPUGNED ASSESSMENT YEAR 2009-10 ON THE FACTS A ND CIRCUMSTANCES OF THE CASE. 3. GROUNDS IN RESPECT OF REOPENING OF ASSESSMENT K) THE APPELLANT DENIES HIMSELF TO BE ASSESSED TO T AX AS THE MANDATORY CONDITIONS FOR ASSUMPTION OF JURISDICTION UNDER SECTION 148 OF THE ACT DID NOT EXIST OR HAVE NOT BEEN COMPL IED AND CONSEQUENTLY THE ORDER OF ASSESSMENT IS BAD IN LAW AND LIABLE TO BE CANCELLED ON THE FACTS AND CIRCUMSTANCE OF THE C ASE. L) THE ASSESSMENT IS ALSO BAD IN LAW AS NO NOTICE UNDER 148 HAS BEEN SERVED ON THE APPELLANT AND CONSEQUENTLY THE O RDER OF ASSESSMENT IS BAD IN LAW. M) THE ASSESSMENT IS ALSO BAD IN LAW AS NO PROPER S ANCTION UNDER SECTION 151 OF THE ACT AS CONTEMPLATED IN LAW HAS B EEN OBTAINED AND CONSEQUENTLY THE ORDER OF ASSESSMENT IS BAD IN LAW AND LIABLE TO BE CANCELLED ON THE FACTS AND CIRCUMSTANCE OF TH E CASE. N) THE ASSESSMENT ORDER IS FURTHER BAD IN LAW AS T HE OBJECTIONS TO THE REASONS UNDER SECTION 148 HAVE NOT BEEN DISPOSE D OF BY A SPEAKING ORDER AND HENCE CONTRARY TO LAW AND ON THI S COUNT ALSO THE ASSESSMENT IS LIABLE TO BE CANCELLED ON THE FAC TS AND CIRCUMSTANCE OF THE CASE. 4. GROUNDS ON ASSET BEING AGRICULTURAL LAND AND NOT CAPITAL ASSET A) THE ASSESSING OFFICER AND THE CIT (A) ARE NOT JU STIFIED IN LAW IN TREATING THE PROPERTY SOLD AS A CAPITAL ASSET AND N OT AS AGRICULTURAL LAND ON THE FACTS AND CIRCUMSTANCE OF THE CASE. B) THE AUTHORITIES BELOW HAVE FAILED TO TAKE INTO CONSIDERATION THE EVIDENCE PLACED BEFORE THEM REGARDING THE DISTA NCE AND THE LOCATION OF THE PROPERTY AND HENCE THE QUESTION OF TREATING THE SAME AS CAPITAL ASSET DOES NOT ARISE ON THE FACTS A ND CIRCUMSTANCE OF THE CASE. C) THE AUTHORITIES BELOW HAVE FAILED TO TAKE INTO C ONSIDERATION THE EVIDENCE PLACED BEFORE THEM REGARDING THE DISTANCE AND THE LOCATION OF THE PROPERTY AND HENCE THE QUESTION OF TREATING THE SAME AS CAPITAL ASSET DOES NOT ARISE ON THE FACTS A ND CIRCUMSTANCE OF THE CASE. ITA NO. 304/BANG/2018 PAGE 3 OF 17 D) THE AUTHORITIES BELOW ERRONEOUSLY RELIED UPON T HE LETTER FROM THE TASHILDHAR WHEREIN IT HAS BEEN STATED THAT THE PROPERTY IS 8 KMS FROM KENGERI MUNCIPALITY, WHEN KENGERI MUNICIPA LITY IS NOT ENUMERATED IN THE NOTIFICATION OF THE CENTRAL G OVERNMENT ON THE FACTS AND CIRCUMSTANCES OF THE CASE. E) THE LEARNED AUTHORITIES BELOW, ERRED IN HOLING T HAT THE PROPERTY IS WITHIN 8 KMS OF BBMP ON THE DATE OF SALE OF LAND WITHOUT ANY FACTUAL BASIS ON THE FACTS AND CIRCUMSTANCE OF THE CASE. F) THE ASSESSING OFFICER AND THE COMMISSIONER FAI LED TO APPRECIATE THAT THE LAND SITUATED IN PANCHYAT BY NO STRETCH OF IMAGINATION CAN BE TREATED AS CAPITAL ASSET ON THE FACTS AND CIRCUMSTANCE OF THE CASE. G) THE ASSESSING OFFICER AND THE COMMISSIONER ERRED IN LAW IN NOT APPRECIATING THAT PANCHAYAT AND MUNCIPALITIES ARE D IFFERENT AS PER OUR CONSTITUTION AND NO LAND WHICH IS PART OF PANCH AYAT CAN BE TREATED AS CAPITAL ASSET ON THE FACTS AND CIRCUMSTA NCE OF THE CASE. H) THE LEARNED ASSESSING OFFICER HAS RELIED ON NOT IFICATIONS BY URBAN DEVELOPMENT DEPARTMENT OF THE STATE GOVERNMEN T WHICH ARE ALL ISSUED SUBSEQUENT TO THE DATE OF THE AGREEMENT OR SALE DEED AND THUS NOT RELEVANT FOR THE YEAR UNDER ASSESSMENT ON THE FACTS AND CIRCUMSTANCE OF THE CASE. I) THE LEARNED ASSESSING OFFICER WAS NOT JUSTIFIED, IN NOT ACCEPTING THAT THE CIRCULAR OF 2009 OF FORMING BBMP , WAS BEYOND THE DATE OF SALE OF THE LAND, AND HENCE NOT RELEVANT TO THE FACTS OF THE PRESENT CASE. THE AO, FURTHER, TOOK A DIAMETRICALLY OPPOSITE VIEW IN OTHER ASSESSEE'S CASE ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. GROUNDS ON COMPUTATION OF CAPITAL GAINS: A) THE AUTHORITIES BELOW WERE NOT JUSTIFIED IN CON SIDERING THE GUIDELINE VALUE ON THE DATE OF REGISTRATION OF THE PROPERTY AS FULL VALUE OF CONSIDERATION ON THE FACTS AND CIRCUMSTANC E OF THE CASE. B) THE AUTHORITIES BELOW WERE NOT JUSTIFIED IN NOT ADOPTING THE APPELLANTS SHARE OF THE AMOUNT SHOWN IN THE SALE DE ED AT RS ITA NO. 304/BANG/2018 PAGE 4 OF 17 10,50,000/- AS THE FULL VALUE OF CONSIDERATION FOR THE PURPOSE OF COMPUTING CAPITAL GAINS ON THE FACTS AND CIRCUMSTAN CE OF THE CASE. C) THE AUTHORITIES BELOW FAILED TO APPRECIATE THAT THE SECTION 50C IS NOT APPLICABLE TO THE FACTS OF THE CASE AS T HE LAND SOLD IS NOT A CAPITAL ASSET BUT AGRICULTURAL LAND ON THE FA CTS OF THE CASE. D) WITHOUT PREJUDICE THE AUTHORITIES BELOW OUGHT TO HAVE REFERRED TO THE VALUATION OFFICER TO DETERMINE THE FULL VALUE OF CONSIDERATION AS PER SECTION 50 OF THE ACT ON THE F ACTS AND CIRCUMSTANCE OF THE CASE. E) THE AUTHORITIES BELOW FAILED TO APPRECIATE THA T THE PROVISO TO SECTION 50 C HAS BEEN HELD TO BE CLARIFICATORY A ND HENCE THE VALUE ON THE DATE OF THE AGREEMENT ALONE SHOULD HAV E BEEN CONSIDERED AS FULL VALUE OF CONSIDERATION FOR THE P URPOSE OF COMPUTING CAPITAL GAINS ON THE FACTS AND CIRCUMSTAN CE OF THE CASE. F) WITHOUT PREJUDICE THE LEARNED ASSESSING OFFICER WAS NOT JUSTIFIED IN COMPUTING THE ENTIRE CAPITAL GAINS IN THE HANDS OF THE APPELLANT WHEN FIVE PERSONS ARE PARTY TO THE SALE D EED AND THUS ASSESSING IN EXCESS OF 1/5 TH IS BAD IN LAW ON THE FACTS AND CIRCUMSTANCE OF THE CASE. 6. WITHOUT PREJUDICE THE ASSESSING OFFICER OUGHT N OT TO HAVE TAXED THE INDIVIDUAL AS THE PROPERTY IS ANCESTRAL A ND OUGHT TO HAVE BEEN TAXED IN THE STATUS OF HUF AND THUS THIS ASSES SMENT IS TOTALLY CONTRARY TO LAW AND LIABLE TO BE CANCELLED ON THE F ACTS AND CIRCUMSTANCE OF THE CASE. 7. THE LEARNED ASSESSING OFFICER ERRED IN LAW IN N OT GRANTING DEDUCTION UNDER SECTION 54 B ON THE FACTS AND CIRCU MSTANCE OF THE CASE. 8. WITHOUT PREJUDICE THE LEARNED ASSESSING OFFICER IS NOT JUSTIFIED IN ASSESSING THE CAPITAL GAINS FOR THE AS SESSMENT YEAR 2009-10 WHICH IS IMPERMISSIBLE IN LAW ON THE FACTS AND CIRCUMSTANCE OF THE CASE. 9. WITHOUT PREJUDICE TO THE RIGHT TO SEEK WAIVER AS PER THE PARITY OF REASONING OF THE DECISION OF THE HON'BLE APEX COURT IN THE CASE OF KARANVIR SINGH 349 ITR 692, THE APPELLA NT DENIES ITA NO. 304/BANG/2018 PAGE 5 OF 17 ITSELF LIABLE TO BE CHARGED TO INTEREST UNDER SECTI ON 234 A & 234 B OF THE INCOME TAX ACT UNDER THE FACTS AND CIRCUMSTA NCES OF THE CASE. FURTHER THE LEVY OF INTEREST UNDER SECTION 23 4 A & 234 B OF THE ACT IS ALSO BAD IN LAW AS THE PERIOD, RATE, QUA NTUM AND METHOD OF CALCULATION ADOPTED ON WHICH INTEREST IS LEVIED ARE ALL NOT DISCERNABLE AND ARE WRONG ON THE FACTS OF THE CASE. 10. THE APPELLANT DENIES THE LIABILITY TO PAY INT EREST UNDER SECTION 234A, OF RS 32,05,866/ - AND 234B OF RS 33, 92,253/ - IN VIEW OF THE FACT THAT THERE IS NO LIABILITY TO ADDI TIONAL TAX AS DETERMINED BY THE LEARNED ASSESSING OFFICER. WITHOU T PREJUDICE THE RATE, PERIOD AND ON WHAT QUANTUM THE INTEREST H AS BEEN LEVIED ARE NOT DISCERNABLE FROM THE ORDER AND HENCE DESERV ES TO BE CANCELLED ON THE FACTS AND CIRCUMSTANCES OF THE CAS E. 11. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, DELE TE OR SUBSTITUTE ANY OF THE GROUNDS URGED ABOVE. 12. IN VIEW OF THE ABOVE AND OTHER GROUNDS THAT MA Y BE URGED AT THE TIME OF THE HEARING OF THE APPEAL, THE APPEL LANT PRAYS THAT THE APPEAL MAY BE ALLOWED AND APPROPRIATE RELIEF BE GRANTED IN THE AND EQUITY. 2. THE ASSESSEE IS A RESIDENT INDIVIDUAL AND SOLD THE ASSET SITUATED AT KANIMINIKE VILLAGE, WHICH IS BEYOND 8 KMS. ON THE B BMP/KENGERI MUNICIPALITY VIDE SALE DEED DATED 28.12.2005 AND RE GISTERED ON 24.9.2008. THE GUIDANCE VALUE OF THE SAID PROPERTY WAS RS.1.6 CRORES AS AGAINST THE CONSIDERATION SHOWN IN THE SALE AGREEMENT AT RS.10. 5 LAKHS. ON THESE REASONS, THE ASSESSMENT WAS REOPENED BY RECORDING T HE REASONS AND ISSUED NOTICE U/S. 148 ON 29.3.2016. THE ASSESSEE FILED OBJECTIONS FOR REOPENING OF THE ASSESSMENT VIDE HIS SUBMISSIONS DA TED 24.10.2016. 3. NOW THE CONTENTION OF THE LD. AR IS THAT THE ASS ESSEE DULY FILED OBJECTIONS FOR REOPENING THE ASSESSMENT ON 24.10.20 16. THESE OBJECTIONS WERE NOT DISPOSED BY PASSING A SPEAKING ORDER. ACC ORDING TO THE LD. AR, THE AO IS BOUND TO DISPOSE OF THE OBJECTIONS FILED BY THE ASSESSEE PRIOR TO PROCEEDING WITH THE ASSESSMENT. WHEN THE AO FAILED TO PASS SUCH ORDER, ITA NO. 304/BANG/2018 PAGE 6 OF 17 THE ASSESSMENT ORDER IS LIABLE TO BE QUASHED. HE R ELIED ON THE FOLLOWING JUDGMENTS:- 4. THE LD. DR SUPPORTED THE FINDINGS OF THE CIT(APPEAL S) AND FURTHER RELIED ON THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF HOME FINDERS HOUSING LTD. V. ITO, 94 TAXMANN.COM 84 / 25 6 TAXMAN 59 (SC) AND SUBMITTED THAT THE ASSESSMENT ORDER CANNOT BE Q UASHED. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATE RIAL ON RECORD. IN THIS CASE, ASSESSMENT WAS REOPENED BY ISSUING NO TICE U/S. 148 DATED 29.3.2016 SERVED ON THE ASSESSEE ON 30.3.2016. LAT ER THERE WAS CHANGE OF INCUMBENT OF AO, SO PROCESS WAS CONTINUED VIDE L ETTER DATED 26.7.2016 AND FOLLOWED BY ONE MORE LETTER DATED 3.8.2016 AND ASSESSEE VIDE LETTERS DATED 24.10.2016 AND 23.12.2016 OBJECTED TO REOPENI NG THE ASSESSMENT AS FOLLOWS:- I) THAT THE LAND SOLD IS NOT A CAPITAL ASSET WIT HIN THE MEANING OF SECTION 2(14) OF THE I.T.ACT, 1961 THE REASON TH AT IT IS AN AGRICULTURAL LAND SITUATED IN AN AREA WITH POPULATI ON OF LESS THAN 10000 (I.E. KANMINIKE VILLAGE WITH A POPULATION OF 2408 ONLY AS PER CENSUS OF 2011) AND ALSO BEYOND 8 KILOMETERS FR OM THE LOCAL LIMITS TO THE BMP (BANGALORE MAHANAGARA PALIKE). IT IS ALSO PERTINENT TO NOTE THAT THE BBMP WAS NOTIFIED IN JAN UARY 2007; HOWEVER THE SALE AGREEMENT WAS EXECUTED ON 28.12.20 05 ( MUCH BEFORE BBMP WAS NOTIFIED AND AREAS OF EARLIER BANGA LORE MAHANAGARA PALIKE WAS FAR LESS THAN PRESENT BBMP). THOUGH THE ITA NO. 304/BANG/2018 PAGE 7 OF 17 SALE DEED WAS REGISTERED ON 24.09.2008, THE SALE AG REEMENT WAS EXECUTED ON 28.12.2005 AND CONTENDED THAT THE TRANS FER HAD ALREADY TAKEN PLACE ON 28.12.2005 AND THE EXECUTION OF REGISTERED SALE DEED ON 24.09.2008 WAS MERELY A FORMALITY TO C ONFIRM THE LEGAL OWNERSHIP OF THE PURCHASER AND ACCORDINGLY RE QUESTED TO CLOSE THE ISSUE PLACING RELIANCE ON THE DECISION OF HON'BLE ITAT AHMEDABAD IN THE CASE ACIT DHARAMSHIBHAI SORIANI IN ITA NO.1237 1 AHD 12013 FOR THE A. Y.2008-09. III) THE ASSESSEE FURTHER CONTENDED THE SALE CONSI DERATION PAID FOR ALL THE- FIVE CO-OWNERS WAS OF RS.10,50,0001 - AND THE ONE FIFTH SHARE OF THE ASSESSEE AMOUNTS TO RS.2,10,0001 - ONLY AND REQUESTED TO DROP THE PROCEEDINGS INITIATED U/S.148 . 6. NOW THE CONTENTION OF THE LD. AR IS THAT THE OBJECT ION OF THE ASSESSEE FOR REOPENING OF ASSESSMENT WAS NOT DISPOS ED BY THE AO BY SEPARATE SPEAKING ORDER. FOR THIS HE RELIED ON THE JUDGMENT IN THE CASE OF LAKSHMAN IN ITA NO.382/BANG/2018 DATED 8.2.2018 WHEREIN IT WAS HELD AS FOLLOWS:- 8. AGGRIEVED BY THE AFORESAID DECISION OF THE CIT( A), THE ASSESSEE HAS RAISED GROUND NO. 3 N) BEFORE THE TRIB UNAL. WE HAVE HEARD THE RIVAL SUBMISSIONS. LEARNED COUNSEL FOR TH E ASSESSEE BROUGHT TO OUR NOTICE THE DECISION OF THE HONBLE K ARNATAKA HIGH COURT RENDERED IN THE CASE OF DEEPAK EXTRUSIONS (P. ) LTD. V DCIT (2017) 80 TAXMANN.COM 77 (KARN) WHEREIN THE HONBLE KARNATAKA HIGH COURT TOOK THE VIEW THAT IF THE AO D OES NOT DISPOSE OFF THE OBJECTIONS REGARDING THE VALIDITY O F PROCEEDINGS UNDER SECTION 147 OF THE ACT AS LAID DOWN BY THE HO NBLE SUPREME COURT IN THE CASE OF GKN DRIVESHAFTS (INDIA ) LTD. (SUPRA), THEN THE ORDER OF ASSESSMENT PASSED CANNOT BE SUSTAINED. THE HONBLE COURT HELD THAT IF THE ASSESSEE DESIRES TO SEEK THE REASONS FOR ISSUING THE NOTICE, THE ASSESSING OFFIC ER IS BOUND TO FURNISH THE REASONS AND UPON THE RECEIPT OF SUCH RE ASONS, THE ASSESSEE IS ENTITLED TO FILE THE OBJECTIONS TO THE ISSUING OF THE NOTICE AND THE ASSESSING OFFICER THEREAFTER IS BOUN D TO DISPOSE OF THE SAME BY PASSING A SPEAKING ORDER. IF THE AO DOE S NOT DISPOSE OFF THE OBJECTIONS PRIOR TO PROCEEDINGS WITH THE AS SESSMENT AND PASSES AN ORDER OF ASSESSMENT, SUCH ORDER OF ASSESS MENT CANNOT BE SUSTAINED AND IS LIABLE TO BE QUASHED. LEARNED D R HOWEVER ITA NO. 304/BANG/2018 PAGE 8 OF 17 PLACED RELIANCE ON THE ORDER OF THE CIT(A) FROM THE DECISION REFERRED TO IN THE ORDER OF CIT(A). LEARNED COUNSEL FOR THE ASSESSEE HOWEVER BROUGHT TO OUR NOTICE THAT HONBLE MADRAS HIGH COURT HAS TAKEN A CONTRARY VIEW TO THE VIEW TA KEN IN THE CASE REFERRED TO BY THE CIT(A) IN THE IMPUGNED ORDE R AND IN THIS REGARD REFERRED TO THE DECISION OF HONBLE MADRAS H IGH COURT IN THE CASE OF JAYANTHI NATARAJAN 401 ITR 215 AND PENT AFOUR EMPLOYEES WELFARE FOUNDATION 312 CTR 35 (MADRAS). 9. WE HAVE GIVEN A CAREFUL CONSIDERATION TO THE RIV AL SUBMISSIONS. THE FACTS ARE UNDISPUTED THAT THE ASSESSEE RAISED O BJECTIONS WITH REGARD TO VALIDITY OF INITIATION OF PROCEEDINGS UND ER SECTION 147 OF THE ACT BY HIS LETTERS DATED 03.10.2016 AND 24.1 0.2016 AFTER FILING THE RETURN OF INCOME. THE ADMITTED POSITION IS THE AO HAS NOT DISPOSED OFF THE OBJECTIONS BY A SPEAKING ORDER . UNDER THE CIRCUMSTANCES, IT IS CLEAR THAT THE MANDATORY PROCE DURE OF DISPOSAL OF OBJECTION BY THE AO BEFORE PROCEEDING W ITH THE ASSESSMENT HAS NOT BEEN FOLLOWED AND THEREFORE THE ORDER OF ASSESSMENT CANNOT BE SUSTAINED AND HAS TO BE QUASH ED. THE DECISION OF THE HONBLE KARNATAKA HIGH COURT WHICH IS THE JURISDICTIONAL HIGH COURT AS FAR AS THIS TRIBUNAL I S CONCERNED IN THE CASE OF DEEPAK EXTRUSIONS PVT. LTD., (SUPRA) SU PPORTS THE CASE OF THE ASSESSEE. THE OTHER DECISIONS OF THE HONBLE GUJARAT HIGH COURT AND THE HONBLE MADRAS HIGH COURT REFERRED TO IN THE ORDER OF THE CIT(A) BEING THE DECISIONS OF THE NON-JURISD ICTIONAL HIGH COURTS, ARE NOT BINDING IN THE LIGHT OF THE DECISIO N OF THE HONBLE JURISDICTIONAL HIGH COURT. CONSEQUENTLY, WE UPHOLD THE GRIEVANCES PROJECTED BY THE ASSESSEE IN GROUND NO.3 N) AND HOLD THAT THE ORDER OF ASSESSMENT PASSED IS VITIATED AND LIABLE TO BE ANNULLED. IN VIEW OF THE ABOVE CONCLUSION, WE ARE O F THE VIEW THAT THE OTHER ISSUE RAISED BY THE ASSESSEE IN ITS APPEA L DOES NOT REQUIRE EXAMINATION. 7. CONTRARY TO THIS, THE LD. DR SUBMITTED THAT IN VIEW OF THE JUDGMENT OF THE HONBLE SUPREME COURT IN IN SLP IN THE CASE OF HOME FINDERS HOUSING LTD. V. ITO, 256 TAXMAN 59 (SC) , NON-DISPOSING OF THE OBJECTION RAISED BY THE ASSESSEE AGAINST THE REOPENING OF ASSESSMENT BY SEPARATE AND SPEAKING ORDER IS ONLY A PROCEDURAL MATTER AND IT D OES NOT MAKE THE ITA NO. 304/BANG/2018 PAGE 9 OF 17 ASSESSMENT BAD IN LAW AND HE SUBMITTED THAT ON THIS REASONING, ASSESSMENT ORDER CANNOT BE QUASHED. 8. IN REPLY, THE LD. AR SUBMITTED THAT IN VIEW OF THE JUDGMENT OF THE KHODAY DISTILLERIES LTD. V. MAHADESHWARA SAHAKARA S AKKARE KARKHANE LTD., 262 TAXMAN 279 (SC) WHEREIN SLP WAS DISMISSED IN LIMINE WITHOUT GIVING ANY REASON MAY NOT BE RATIO DECENDI AND ACCORDING TO HIM, THE JUDGMENT OF KARNATAKA HIGH COURT IN THE CASE OF DEEPAK EXTRUSIONS PVT. LTD., 80 TAXMANN.COM 77 (KAR) WHEREIN IT WAS HELD THAT IF THE AO DOES NOT DISPOSE OF THE OBJECTION REGARDING VALIDITY OF THE PROCEEDINGS U/.S 147 OF THE ACT AS LAID DOWN BY THE SUPREME COURT IN GKN DRIVESHAFTS (INDIA) LTD. 251 ITR 19 (SC) , THEN THE ORDER OF ASSESSMENT PASSED CANNOT BE SUSTAINED. IT WAS HELD THAT IF THE ASSESSEE DECIDE S TO SEEK REASONS FOR ISSUING NOTICE, THE AO IS BOUND TO FURNISH THE REAS ONS AND UPON RECEIPT OF SUCH REASONS, THE ASSESSEE IS ENTITLED TO FILE OBJE CTIONS TO THE ISSUING OF NOTICE AND THE AO THEREAFTER IS BOUND TO DISPOSE OF THE SAME BY PASSING A SPEAKING ORDER. IF THE AO DOES NOT DISPOSE OF THE OBJECTIONS PRIOR TO PROCEEDINGS OF ASSESSMENT AND PASSES AN ORDER OF AS SESSMENT, SUCH ORDER OF ASSESSMENT CANNOT BE SUSTAINED AND LIABLE TO BE QUASHED. 9. THE MAIN CONTENTION OF THE LD. AR IS THAT THE AO HAS TO DISPOSE OF THE OBJECTIONS RAISED BY THE ASSESSEE FOR REOPENING THE ASSESSMENT BY A SEPARATE SPEAKING ORDER AND THEREAFTER HE HAS TO FR AME THE ASSESSMENT ORDER. FOR THIS PURPOSE, HE RELIED ON THE JUDGMENT OF SUPREME COURT IN GKN DRIVESHAFTS (INDIA) LTD. (SUPRA) . THERE ARE DIVERGENT VIEWS OF DIFFERENT HIGH COURTS ON THIS ISSUE AS TO WHETHER THE MATTER IS REQUIRED TO BE RECONSIDERED AT THE AOS LEVEL FOR DECIDING THE OBJ ECTIONS BY A SEPARATE SPEAKING ORDER OR THE ASSESSMENT ORDER IS LIABLE TO BE QUASHED FOR WANT OF SEPARATE AND SPEAKING ORDER OF THE AO. THE CONTENT ION OF THE LD. DR IS THAT IF THE OBJECTIONS OF THE ASSESSEE FOR REOPENIN G THE ASSESSMENT WERE NOT DISPOSED BY A SEPARATE SPEAKING ORDER BY THE AO , IT WOULD NOT BE ITA NO. 304/BANG/2018 PAGE 10 OF 17 NULLITY SO AS TO QUASH THE ASSESSMENT ORDER; RATHE R THE ISSUE MAY BE REMITTED TO THE FILE OF THE AO FOR DECIDING THE OBJ ECTIONS FIRST AND THEN, IF REQUIRED, PASS A FRESH ASSESSMENT ORDER IN ACCORDAN CE WITH LAW. 10. WE COME ACROSS FEW DECISIONS OF THE COORDINATE BENCH ON THIS ISSUE WHICH ARE AS FOLLOWS:- (I) THE DELHI BENCH OF THE TRIBUNAL IN ACIT V. MUKUT MAHAL PVT. LTD., ITA NO.226/DEL/2012 DATED 23.11.2012 HAS ANALYSED THE LEGAL PROPOSITION IN PARAS 6 & 7 AS UNDER:- 6. WE HAVE HEARD BOTH THE PARTIES AND HAVE GONE TH ROUGH THE FACTS OF THE CASE. AS IS APPARENT FROM THE FACTS OF THE CASE, THE LD. CIT(A) QUASHED THE REASSESSMENT PROCEEDINGS MERELY BECAUSE THE AO FAILED TO DISPOSE OF THE OBJECTIONS RAISED B Y THE ASSESSEE IN THEIR LETTER DATED 5.11.2009. THERE IS NO MATERI AL BEFORE US, SUGGESTING THAT THE ASSESSEE RAISED ANY OBJECTIONS AGAINST ISSUANCE OF NOTICE U/S 148 OF THE ACT IMMEDIATELY O N RECEIPT OF NOTICE DATED 27.3.2009 ISSUED BY THE AO OR ON RECEI PT OF A COPY OF THE REASONS ON 9.9.2009.IN TERMS OF DECISION OF HONBLE SUPREME COURT IN THE CASE OF GKN SHAFT (INDIA) LTD. VS. CIT,259 ITR 19(SC), IF THE AO DID NOT DISPOSE OF TH E OBJECTIONS RAISED BY THE ASSESSEE IN HIS LETTER DATED 5.11.200 9, THE MATTER AT BEST COULD BE RESTORED TO THE FILE OF THE AO FOR DO ING THE NEEDFUL. THE APPROACH OF THE LD. CIT(A) IN QUASHING THE ASSE SSMENT IS NOT IN ACCORDANCE WITH LAW. IN GKN DRIVESHAFTS(SUPRA), THE HON'BLE APEX LAID DOWN AN ELABORATE PROCEDURE AS TO THE MAN NER OF DEALING WITH OBJECTIONS RAISED AGAINST A NOTICE U/S 148 OF THE ACT, IN THE FOLLOWING WORDS: 'HOWEVER, WE CLARIFY THAT WHEN A NOTICE UNDER SECT ION 148 OF THE INCOME-TAX ACT IS ISSUED, THE PROPER COU RSE OF ACTION FOR THE NOTICEE IS TO FILE A RETURN AND IF H E SO DESIRES, TO SEEK REASONS FOR ISSUING NOTICES. THE ASSESSING OFFICER IS BOUND TO FURNISH REASONS WITHIN A REASONABLE TIM E. ON RECEIPT OF REASONS, THE NOTICEE IS ENTITLED TO FILE OBJECTIONS TO ISSUANCE OF NOTICE AND THE ASSESSING OFFICER IS BOUND TO DISPOSE OF THE SAME BY PASSING A SPEAKING ORDER. IN THE ITA NO. 304/BANG/2018 PAGE 11 OF 17 INSTANT CASE, AS THE REASONS HAVE BEEN DISCLOSED IN THESE PROCEEDINGS, THE ASSESSING OFFICER HAS TO DISPOSE O F THE OBJECTIONS, IF FILED, BY PASSING A SPEAKING ORDER, BEFORE PROCEEDING WITH THE ASSESSMENT IN RESPECT OF THE ABOVESAID FIVE ASSESSMENT YEARS.' 6.1 IN A SUBSEQUENT DECISION IN THE CASE OF GARDEN FINANCE LTD. V. CIT (ASST.) [2004] 268 ITR 48 (GUJ), THE EFFECT OF THE SUPREME COURT DECISION IN THE CASE OF GKN DRIVESHAFTS [2003 ] 259 ITR 19 CAME UP FOR CONSIDERATION AND BY A MAJORITY OPIN ION IT WAS LAID DOWN BY THE HONBLE COURT: 'WHAT THE SUPREME COURT HAS NOW DONE IN THE GKN DRIVESHAFTS (INDIA) LTD.'S CASE [2003] 259 ITR 19 I S NOT TO WHITTLE DOWN THE PRINCIPLE LAID DOWN BY THE CONSTIT UTION BENCH OF THE APEX COURT IN CALCUTTA DISCOUNT CO. LT D. CASE [1961] 41 ITR 191 BUT TO REQUIRE THE ASSESSEE FIRST TO LODGE PRELIMINARY OBJECTION BEFORE THE ASSESSING OFFICER WHO IS BOUND TO DECIDE THE PRELIMINARY OBJECTIONS TO ISSUA NCE OF THE REASSESSMENT NOTICE BY PASSING A SPEAKING ORDER AND, THEREFORE, IF SUCH ORDER ON THE PRELIMINARY OBJECTI ONS IS STILL AGAINST THE ASSESSEE, THE ASSESSEE WILL GET A N OPPORTUNITY TO CHALLENGE THE SAME BY FILING A WRIT PETITION SO THAT HE DOES NOT HAVE TO WAIT TILL COMPLETION OF THE REASSESSMENT PROCEEDINGS WHICH WOULD HAVE ENTAILED THE LIABILITY TO PAY TAX AND INTEREST ON REASSESSMENT A ND ALSO TO GO THROUGH THE GAMUT OF APPEAL, THE SECOND APPEA L BEFORE INCOME-TAX APPELLATE TRIBUNAL AND THEN REFERENCE/TAX APPEAL TO THE HIGH COURT. VIEWED IN THIS LIGHT, IT APPEARS TO ME THAT THE RIG OUR OF AVAILING OF THE ALTERNATIVE REMEDY BEFORE THE ASSES SING OFFICER FOR OBJECTING TO THE REASSESSMENT NOTICE UN DER SECTION 148 HAS BEEN CONSIDERABLY SOFTENED BY THE A PEX COURT IN GKN DRIVESHAFTS (INDIA) LTD.'S CASE [2003] 259 ITR 19 IN THE YEAR 2003. IN MY VIEW, THEREFORE, THE GKN DRIVESHAFTS (INDIA) LTD. 'S CASE [2003] 259 ITR 19 DOES NOT RUN COUNTER TO THE CALCUTTA DISCOUNT CO. LTD. C ASE [1961] 41 ITR 191 (SC) BUT IT MERELY PROVIDES FOR C HALLENGE TO THE REASSESSMENT NOTICE IN TWO STAGES, THAT IS, (I) RAISING PRELIMINARY OBJECTIONS BEFORE THE ASSES SING OFFICER AND IN CASE OF FAILURE BEFORE THE ASSESSING OFFICER; ITA NO. 304/BANG/2018 PAGE 12 OF 17 (II) CHALLENGING THE SPEAKING ORDER OF THE ASSESSIN G OFFICER UNDER SECTION 148 OF THE ACT.' 6.2 HONBLE GUJRAT H IGH COURT IN THE CASE OF ARVIND MILLS LTD. VS. ACWT [20 04] 270 ITR 469 (GUJ) WHILE FOLLOWING THE AFORESAID DEC ISION CONCLUDED THAT ONCE THE SUPREME COURT STATED THAT T HE AO WAS BOUND TO DISPOSE OF THE OBJECTIONS BY PASSING A SPEAKING ORDER, IT WAS NOT OPEN TO THE AUTHORITIES TO CONTEND THAT IN THE ABSENCE OF ANY PROVISION IN THE ACT, THE AUTHORITIES COULD NOT HAVE PASSED A SPEAKING OR DER. HONBLE DELHI HIGH COURT IN THE CASE OF DELHI TOURI SM & TRANSPORT DEVELOPMENT CORPORATION LTD. VS. ACIT [20 04] 141 TAXMAN 361 (DELHI), WHILE RELYING UPON THE AFOR ESAID DECISION OF THE HONBLE APEX COURT IN GKN DRIVESHAF TS (INDIA) LTD.(SUPRA) DIRECTED TO FOLLOW THE PROCEDUR E LAID DOWN BY THE HONBLE APEX COURT AND PASS A SPEAKING ORDER BEFORE PASSING THE ASSESSMENT ORDER. 6.3 WHILE ADJUDICATING A SIMILAR ISSUE, HONBLE GUJ RAT HIGH COURT IN THE CASE OF MGM EXPORTS VS. DCIT [2010] 23 DTR 356 (GUJ) OBSERVED AS UNDER:- APPLYING THE AFORESAID SETTLED LEGAL POSITION TO T HE FACTS OF THE CASE IT IS APPARENT THAT THE ACTION OF THE R ESPONDENT AUTHORITY IN FRAMING THE REASSESSMENT ORDER, WITHOU T FIRST DISPOSING OF THE PRELIMINARY OBJECTIONS RAISED BY T HE PETITIONER, CANNOT BE SUSTAINED. ACCORDINGLY, THE REASSESSMENT ORDER DATED DECEMBER 16, 2008 IS HEREB Y QUASHED AND SET ASIDE AND THE RESPONDENT AUTHORITY SHALL DISPOSE OF THE PRELIMINARY OBJECTIONS BY PASSING A SPEAKING ORDER AND ONLY THEREAFTER PROCEED WITH THE REASSESSMENT PROCEEDINGS IN ACCORDANCE WITH LAW. CONSIDERING THE FACT THAT THE NORMAL PERIOD OF LIMI TATION, FOR FRAMING REASSESSMENT PURSUANT TO NOTICE DATED M ARCH 3, 2008, ISSUED UNDER SECTION 148 OF THE ACT, HAS A LREADY EXPIRED ON DECEMBER 31, 2008, IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE IT WOULD SERVE THE ENDS O F JUSTICE IF THE RESPONDENT AUTHORITY IS DIRECTED TO ABIDE BY THE FOLLOWING SCHEDULE : (I) THE RESPONDENT AUTHORITY SHALL DISPOSE OF THE PRELIMINARY OBJECTIONS RAISED BY THE PETITIONER WIT HIN A PERIOD OF 4 (FOUR) WEEKS FROM BY PASSING A SPEAKING ORDER IN ACCORDANCE WITH LAW; ITA NO. 304/BANG/2018 PAGE 13 OF 17 (II) THEREAFTER, THE RESPONDENT AUTHORITY SHALL UND ERTAKE REASSESSMENT PROCEEDINGS, IF NECESSARY, AND SHALL COMPLETE THE SAME WITHIN A PERIOD OF 4 (FOUR) WEEKS THEREAFTER, I.E., THE DATE OF DISPOSAL OF THE PRELI MINARY OBJECTIONS; (III) NO EXTENSION OF TIME SHALL BE SOUGHT FOR BY E ITHER SIDE IN THE FACT SITUATION OF THE PRESENT CASE; (IV) THE AFORESAID SCHEDULE SHALL NOT PRECLUDE THE RIGHTS OF THE PETITIONER TO CHALLENGE THE ORDER DISPOSING OF THE PRELIMINARY OBJECTIONS, IF LIE SAID ORDER IS REQUIR ED TO BE SO CHALLENGED. 6.4 RECENTLY, HONBLE JURISDICTIONAL HIGH COURT IN THEIR DECISION DATED 16.2.2012 IN SAK INDUSTRIES PVT. LTD. IN W.P. (C) 7933/2010 RESTORED THE MATTER TO THE FILE OF THE AO, THE REAS SESSMENT PROCEEDINGS HAVING BEEN COMPLETED WITH UNDESIRABLE HASTE AND HURRY, IN VIOLATION OF PRINCIPLES OF NATURAL JUSTIC E AND CONTRARY TO THE PROCEDURE MANDATED. 6.5 THE POSITION IN LAW IS THUS WELL SETTLED. IN TH E INSTANT CASE, THE REASONS WERE RECORDED BEFORE ISSUANCE OF NOTICE U/S 148 OF THE ACT ON 27.3.2009. THERE IS NO DISPUTE THAT THE NOTI CE WAS SERVED ON THE ASSESSEE. THERE IS ALSO NO DISPUTE THAT THE REASONS RECORDED BY THE AO WERE SUPPLIED TO THE ASSESSEE ON 9.9.2009 . THESE REASONS, INDISPUTABLY, WERE THE SAME AS WERE RECORD ED BY THE AO. AFTER A NOTICE FOR REASSESSMENT HAS BEEN ISSUED, AN ASSESSEE IS REQUIRED TO FILE THE RETURN AND SEEK REASONS FOR IS SUANCE OF SUCH NOTICE. THE AO IS THEN BOUND TO SUPPLY THE REASONS WITHIN A REASONABLE TIME. ON RECEIPT OF REASONS, THE ASSESSE E IS ENTITLED TO FILE PRELIMINARY OBJECTIONS TO ISSUANCE OF NOTICE A ND THE AO IS UNDER A MANDATE TO DISPOSE OF SUCH PRELIMINARY OBJE CTIONS BY PASSING A SPEAKING ORDER, BEFORE PROCEEDING WITH TH E ASSESSMENT IN RESPECT OF THE ASSESSMENT YEAR FOR WHICH SUCH NO TICE HAS BEEN ISSUED. 7. IN VIEW OF ABOVE SETTLED LEGAL POSITION, WE CONS IDER IT FAIR AND APPROPRIATE TO VACATE THE FINDINGS OF THE LD. CIT(A ) AS ALSO SET ASIDE THE REASSESSMENT ORDER AND REMIT THE MATTER T O THE FILE OF THE AO WITH THE DIRECTIONS TO FOLLOW THE PROCEDURE LAID DOWN BY THE HONBLE APEX COURT REITERATED BY THE HONBLE JURISD ICTIONAL HIGH COURT. THE AO SHALL DISPOSE OF THE PRELIMINARY OBJE CTIONS BY ITA NO. 304/BANG/2018 PAGE 14 OF 17 PASSING A SPEAKING ORDER AND ONLY THEREAFTER PROCEE D WITH THE REASSESSMENT IN ACCORDANCE WITH LAW. WITH THESE OBS ERVATIONS, GROUND NOS.1& 2 IN THE APPEAL ARE DISPOSED OF. AS A COROLLARY, THE OTHER GROUND NOS. 3 & 4 RAISED IN THE APPEAL DO NOT SURVIVE FOR ADJUDICATION AT THIS STAGE AND ARE , THEREFORE, TRE ATED AS INFRUCTUOUS. (II) SIMILAR VIEW HAS BEEN TAKEN BY THE COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF HAJEE HAMMED V. DCIT, ITA NO.511 TO 516 & 552 TO 557/BANG/2011 DATED 28.9.2011 IN PARAS 11 & 12 AS UNDER: 11. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF BO TH THE PARTIES AND HAVE CAREFULLY GONE THROUGH THE MATERIAL AVAILA BLE ON RECORD. IN THE PRESENT CASE, IT APPEARS THAT WHEN THE AO IS SUED NOTICE U/S. 148 OF THE ACT FOR REOPENING THE ASSESSMENT, THE AS SESSEE FILED OBJECTIONS AND THOSE OBJECTIONS WERE NOT DISPOSED O F BY THE AO. THIS FACT HAS ALSO BEEN ADMITTED BY THE LD. CIT(A), WHO OBSERVED THAT HE WAS NOT INCLINED TO AGREE WITH THE ASSESSEE THAT MERELY BECAUSE THE AO HAD NOT CONSIDERED HIS OBJECTION TO THE NOTICE U/S. 148, THE ENTIRE ASSESSMENT BECOMES BAD IN LAW. ON A SIMILAR ISSUE, THEIR LORDSHIPS OF THE HONBLE SUPREME COURT IN THE CASE OF GKN DRIVESHAFTS INDIA LTD. V. ITO & ORS. (2003) (SUPRA) AT PAGE 20 HELD AS UNDER: . THE ASSESSING OFFICER IS BOUND TO FURNISH REASO NS WITHIN A REASONABLE TIME. ON RECEIPT OF REASONS, TH E NOTICEE IS ENTITLED TO FILE OBJECTIONS TO ISSUANCE OF NOTICE AND THE ASSESSING OFFICER IS BOUND TO DISPOSE OF TH E SAME BY PASSING A SPEAKING ORDER. IN THE INSTANT CASE, A S THE REASONS HAVE BEEN DISCLOSED IN THESE PROCEEDINGS, T HE ASSESSING OFFICER HAS TO DISPOSE OF THE OBJECTIONS, IF FILED, BY PASSING A SPEAKING ORDER, BEFORE PROCEEDING WITH THE ASSESSMENT IN RESPECT OF THE ABOVESAID FIVE ASSESSM ENT YEARS. 12. IN THE PRESENT CASE ALSO, ALTHOUGH THE AO RECOR DED THE REASONS AND SUPPLIED THE SAME TO THE ASSESSEE, BUT HE HAD N OT DISPOSED OF THE OBJECTIONS RAISED BY THE ASSESSEE BY PASSING A SPEAKING ORDER. WE THEREFORE DEEM IT APPROPRIATE TO SET ASIDE THE I MPUGNED ORDER ITA NO. 304/BANG/2018 PAGE 15 OF 17 OF THE LD. CIT(APPEALS) AND REMAND THE CASE BACK TO THE FILE OF THE AO TO DISPOSE OF THE OBJECTIONS FILED BY THE AS SESSEE IN RESPECT OF REOPENING BY ISSUING NOTICE U/S. 148 FIR ST AND THEREAFTER TO DECIDE THE CASE AFRESH IN ACCORDANCE WITH THE LA W, AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING H EARD TO THE ASSESSEE. SINCE WE HAVE REMANDED THE CASE TO THE FI LE OF AO, WE DO NOT CONSIDER IT FIT AND APPROPRIATE TO GO INTO T HE OTHER GROUNDS RAISED BY THE ASSESSEE ON MERITS OF THE CASE. (III) IN THE CASE OF ACIT V. M.R. SEETHARAM (INDL.), ITA NO.1220/BANG/2015 DATED 27.10.2017 IN PARA 6 OF THE ORDER, IT WAS HELD AS UNDER:- 6. HAVING REGARD TO THE PECULIAR FACTS AND CIRCU MSTANCES OF THIS CASE THAT THE ASSESSEE FILED THE OBJECTION AGAINST THE N OTICE UNDER SECTION 148 ONLY ON 28.3.2013 AND THE ASSESSING OFF ICER WAS LEFT WITH NO OPTION BUT TO FINALISE THE ASSESSMENT BEFOR E THE EXPIRY OF LIMITATION FOR COMPLETING THE ASSESSMENT ON 31.3.20 13. THEREFORE THE ASSESSING OFFICER HAS COMPLETED THE ASSESSMENT VIDE ORDER DT.28.3.2013 WHEREBY THE OBJECTIONS OF THE ASSESSEE WERE ALSO DISPOSED OFF. ACCORDINGLY, WE FIND THAT DECISIONS R ELIED UPON BY THE LD. DR ON THIS POINT ARE APPLICABLE IN THE FACT S OF THE PRESENT CASE AND THEREFROM, WE SET ASIDE THE IMPUGNED ORDER OF THE CIT (APPEALS) AS WELL AS THE ASSESSMENT ORDER AND REMIT THE MATTER TO THE RECORD OF THE ASSESSING OFFICER FOR DECIDING TH E OBJECTIONS OF THE ASSESSEE BY A SEPARATE SPEAKING ORDER AND IN CA SE THE OBJECTIONS OF THE ASSESSEE ARE REJECTED THEN AFTER ALLOWING THE ASSESSEE A PERIOD OF FOUR WEEKS THE ASSESSING OFFIC ER MAY PASS THE ASSESSMENT ORDER. 11. IN THE PRESENT CASE, THE AO ISSUED NOTICE U/S. 148 DATED 29.3.2016 SERVED ON THE ASSESSEE ON 30.3.2016. THERE WAS CHA NGE IN THE INCUMBENT OF OFFICE OF AO AND THE PROCEEDINGS CONTINUED VIDE LETTER DATED 26.7.2016 AND BY ONE MORE LETTER DATED 3.8.2016. THE ASSESSE E SOUGHT REASONS FOR REOPENING OF ASSESSMENT ON 3.10.2016 WHICH WAS FURN ISHED TO THE ASSESSEE ON 24.10.2016. THE AO DEALT WITH THE OBJE CTIONS RAISED BY THE ASSESSEE IN HIS ASSESSMENT ORDER ITSELF, THOUGH NOT BY A SEPARATE ORDER ITA NO. 304/BANG/2018 PAGE 16 OF 17 AND COMPLETED THE ASSESSMENT ON 30.12.2016. NOW TH E GRIEVANCE OF THE ASSESSEE IS THAT THE OBJECTIONS OF THE ASSESSEE WAS NOT DISPOSED BY THE AO BY A SEPARATE ORDER. THE AO DULY CONSIDERED THE OBJECTIONS AND DISPOSED THE SAME BY DISCUSSING IT IN HIS ASSESSMEN T ORDER ITSELF. IN OUR OPINION, HE SHOULD HAVE DISPOSED IT BY A SEPARATE S PEAKING ORDER, HOWEVER, IT WOULD NOT LEAD TO NULLITY OF THE ORDER. THE CASE LAWS RELIED ON BY THE LD. DR ON THIS POINT ARE APPLICABLE TO THE F ACTS OF THE PRESENT CASE. ACCORDINGLY, IN THE INTEREST OF JUSTICE, WE VACATE THE ORDERS OF THE LOWER AUTHORITIES AND REMIT THIS LEGAL ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING THE OBJECTIONS OF ASSESSEE FOR REOPENING THE ASSESSMENT BY A SEPARATE AND SPEAKING ORDER, AND IN CASE THE OBJECTIONS OF THE ASSESSEE IS REJECTED, THEN THE AO IS REQUIRE D TO PASS A FRESH ASSESSMENT ORDER, AFTER ADEQUATE OPPORTUNITY OF BEI NG HEARD TO THE ASSESSEE. ORDERED ACCORDINGLY. 12. SINCE WE HAVE SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES ON THE LEGAL ISSUE TO THE FILE OF THE ASSESSING OFFICER, W E REFRAIN FROM GOING INTO THE OTHER GROUNDS ON MERITS AT THIS STAGE. 13. IN THE RESULT, THE APPEAL BY THE ASSESSEE IS P ARTLY ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 17 TH DAY OF SEPTEMBER, 2021. SD/- SD/- ( BEENA PIL LAI ) ( CHANDRA POOJARI ) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 17 TH SEPTEMBER, 2021. / DESAI S MURTHY / ITA NO. 304/BANG/2018 PAGE 17 OF 17 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. BY ORDER ASSISTANT REGISTRAR ITAT, BANGALORE.