SHRI MANOJ DUBEY, Jaipur V. INCOME TAX OFFICER, WARD-5-5, Jaipur

ITA 333/JPR/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 3490 (ITAT-JAIPUR)
• Duration Of Justice: 11 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 12-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Period of limitation; Question of law; Tangible material; Valuation report; Reason to believe; Reassessment proceedings; Borrowed satisfaction; Set aside
• Section: 143(3); 234B; 143(2); 13; 153; 22; 148

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S,A JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA. NO. 332 TO 334/JP/2019 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2010-11 TO 2012-13 SHRI MANOJ DUBEY SB-112, DUBEY BHAWAN, LAL KOTHI, TONK ROAD, JAIPUR. CUKE VS. THE ITO, WARD-5(5), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAYPD 6862 D VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI ASHOK KUMAR GUPTA (ADV) & SHRI S.L. JAIN (ADV.) JKTLO DH VKSJ LS @ REVENUE BY : MISS CHANCHAL MEENA (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 26/02/2020 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 28/02/2020 VKNS'K@ ORDER PER BENCH: THESE ARE THREE APPEALS FILED BY THE ASSESSEE AGAI NST THE RESPECTIVE ORDERS OF LD. CIT(A)-II, JAIPUR DATED 21 .01.2019 FOR THE ASSESSMENT YEAR 2010-11 AND DATED 24.01.2019 FOR TH E ASSESSMENT YEARS 2011-12 & 2012-13 RESPECTIVELY. SINCE COMMON ISSUES ARE INVOLVED, ALL THESE APPEALS WERE HEARD TOGETHER AND ARE DISPOSED OFF BY THIS CONSOLIDATED ORDER. ITA NO. 332 TO 334/JP2019 SHRI MANOJ DUBEY VS. ITO 2 2. FOR THE SAKE OF PRESENT DISCUSSION, WITH THE CON SENT OF BOTH THE PARTIES, ASSESSEES APPEAL IN ITA NO. 332/JP/2019 F OR THE ASSESSMENT YEAR 2010-11 HAS BEEN TAKEN AS A LEAD CASE WHEREIN THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS AS APPEAL:- 1. ASSUMPTION OF JURISDICTION ON PRESUMPTION THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE LD. CIT(A) II HAS GROSSLY ERRED IN LAW AND FACTS BY CONFIRMING UP HOLDING THE ASSUMPTION OF JURISDICTION FOR RE-ASSESSMENT. THE R E-ASSESSMENT PROCEEDINGS IN THIS CASE WERE ONLY BASED ON PRESUMP TION/ SUSPICION AND WERE THUS NOT VALIDLY INITIATED. 2. ACTION U/S 148 ON THE BASIS OF CASH DEPOSIT IN SAVI NG BANK ACCOUNT :- THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE LD. CIT(A) II HAS GROSSLY ERRED IN LAW AND FACTS BY CONFIRMING RE CORDING REASONS AND ISSUING NOTICE U/S 148 ON THE BASIS OF CASH DEP OSIT RS. 2,97,000/- IN BANK ACCOUNT FOR WHICH SOURCE IS FOUN D UNVERIFIABLE. 3. RE-ASSESSMENT IS BASED ON BORROWED SATISFACTION :- THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE LD. CIT(A) II HAS GROSSLY ERRED IN LAW AND FACTS BY CONFIRMING ISSUING NOTICE U/S 148 ON THE BASIS OF AIR INFORMATION IN RESPECT OF CASH DEPOSIT IN BANK ACCOUNTS AND WITHOUT VERIFYING THE CORRECTN ESS OF THE INFORMATION AND THEREFORE RE- ASSESSMENT PROCEEDING IS ABSOLUTELY BAD IN LAW AND WITHOUT JURISDICTION AND FURTHER AO NOT RECORDED HIS SATISFACTION AND REASSESSMENT IS BASED ON BORRO WED SATISFACTION WHICH WAS NOT SUFFICIENT TO CONFER POW ER ON THE AO TO INITIATE REASSESSMENT PROCEEDINGS AGAINST THE ASSES SEE. 4. OBJECTION NOT DISPOSED BY ORDER :- THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE LD. CIT(A) II HAS GROSSLY ERRED IN LAW AND FACTS BY CONFIRMING NOT DISPOSING OF ITA NO. 332 TO 334/JP2019 SHRI MANOJ DUBEY VS. ITO 3 OBJECTION IN REGARD TO REASSESSMENT BY SPEAKING ORD ER AND THEREFORE ORDER IS ILLEGAL. 5. RE-ASSESSMENT CAN BE BY THE ORIGINAL AO :- THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE LD. CIT(A) II HAS GROSSLY ERRED IN LAW AND FACTS BY CONFIRMING TH E REASSESSMENT U/S 147/148 WITHOUT JURISDICTION BECAUSE REASSESSME NT CAN BE MADE BY THE ASSESSING OFFICER WHO MADE THE ORIGINAL ASSESSMENT. 6. NO SHOW CAUSE NOTICE :- THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE LD. CIT(A) II HAS GROSSLY ERRED IN LAW AND FACTS BY CONFIRMING AD DITION OF RS. 2,97,000/- AS UNEXPLAINED CASH DEPOSIT WITHOUT SERV ING SHOW CAUSE NOTICE WHICH IS MANDATORY AS PER CBDT CIRCULAR. 7. CASH DEPOSIT IN BANK FULLY EXPLAINED :- THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE LD. CIT(A) II HAS GROSSLY ERRED IN LAW AND FACTS IN NOT APPRECIAT ING EVIDENCE OF PURCHASED BILL OF GOLD JEWELLERS, VALUATION REPORT OF KAKARIYA JEWLLERS (APPROVED VALUER) AND SALE INVOICE OF GOLD JEWELLERY OF RS.3,49,000/- FILLED DURING ASSESSMENT PROCEEDING. THIS CASH ( SALE PROCEEDS ) WAS AVAILABLE WITH THE ASSESSEE FOR MAKI NG SUBSEQUENT DEPOSIT IN BANK. 8. INTEREST LEVIED U/S 234A, 234B AND 234C THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE LD. CIT(A) II HAS GROSSLY ERRED IN LAW AND FACTS BY CONFIRMING IN CHARGING INTEREST U/S, 234(A), 234(B) & 234(C). 3. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE ASSE SSEE HAS FILED HIS ORIGINAL RETURN OF INCOME ON 30.07.2011 DECLARING T OTAL INCOME OF RS. 1,06,440/-. SUBSEQUENTLY, NOTICE U/S 148 OF THE ACT WAS ISSUED ON 03.03.2017 AFTER RECORDING REASONS AND RECEIVING AP PROVAL FROM THE ITA NO. 332 TO 334/JP2019 SHRI MANOJ DUBEY VS. ITO 4 APPROPRIATE AUTHORITY. IN THE ASSESSMENT ORDER PASS ED U/S 143(3) R.W.S. 147 OF THE ACT, THE ASSESSING OFFICER HAS MADE ADDI TION OF RS. 2,97,000/- TOWARDS UNEXPLAINED CASH DEPOSITS IN THE BANK ACCOUNT MAINTAINED BY THE ASSESSEE AND INCOME WAS ACCORDING LY ASSESSED AT RS. 4,03,440/- WHICH, ON APPEAL, HAS BEEN SUSTAINED BY THE LD. CIT(A). AGAINST THE SAID FINDINGS, THE ASSESSEE IS IN APPEA L BEFORE US. 4. IN GROUNDS NO. 1 TO 5, THE ASSESSEE HAS BASICALLY C HALLENGED THE ASSUMPTION OF JURISDICTION BY THE ASSESSING OFFICER BY ISSUANCE OF NOTICE U/S 148 OF THE IT ACT. 5. DURING THE COURSE OF HEARING, THE LD. AR SUBMITTED THAT THE ASSESSEE IN HIS BUSINESS OF PURCHASE AND SALE OF FI SH AQUARIUMS AND ALLIED PRODUCTS AND HAS ORIGINALLY FILED HIS RETURN OF INCOME ON 30.07.2011 WHEREIN THE ASSESSEE HAS DISCLOSED HIS G ROSS INCOME FROM BUSINESS AMOUNTING TO RS. 1,74,510/-. IT WAS SUBMI TTED THAT FOR THE ASSUMPTION OF JURISDICTION U/S 147 OF THE ACT, THE AO SHOULD HAVE REASONS TO BELIEVE AND NOT MADE SUSPICION THAT THE INCOME HAS ESCAPED ASSESSMENT. IN THIS REGARD, OUR REFERENCE WAS DRAWN TO THE REASONS RECORDED BY THE ASSESSING OFFICER WHICH READS AS UN DER:- THE ASSESSEE HAS FILED HIS RETURN OF INCOME FOR YE AR UNDER CONSIDERATION ON 30.07.2011 DECLARING TOTAL INCOME OF RS. 1,06,440/-. THE ITO INVESTIGATION, JAIPUR CONDUCTED ENQUIRY IN THIS CASE. IT IS GATHERED THAT THE ASSESSEE HAS DE POSITED CASH IN HIS BANK ACCOUNT AMOUNTING TO RS. 2,97,000/- SOURCE OF WHICH WAS FOUND UNVERIFIABLE. IN VIEW OF THE ABOVE AND ON THE BASIS OF ITA NO. 332 TO 334/JP2019 SHRI MANOJ DUBEY VS. ITO 5 MATERIAL AVAILABLE ON RECORD, I HAVE REASON TO BELI EVE THAT INCOME OF RS. 2,97,000/- HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTION 147 OF THE IT ACT 1961. 6. IT WAS SUBMITTED BY THE LD AR THAT THE REASSESSMENT HAS BEEN INITIATED FOR VERIFICATION OF CASH DEPOSIT IN THE B ANK ACCOUNT OF THE ASSESSEE. IT WAS SUBMITTED THAT THERE IS NO MATERIA L IN POSITION OF THE ASSESSING OFFICER TO HOLD THAT CASH SO DEPOSITED RE PRESENT THE INCOME OF THE ASSESSEE OVER AND ABOVE WHAT HAS BEEN DISCLOSED IN THE RETURN OF INCOME ALREADY FILED WHERE HE HAS ALREADY DISCLOSED PROFITS FROM HIS BUSINESS. IN SUPPORT, RELIANCE WAS PLACED ON THE CO ORDINATE BENCH DECISION IN CASE OF AMRIK SINGH VS. ITO 70 TAXMANN. COM 26 AND DECISION IN CASE OF BIR BAHADUR SINGH SIJWALI VS. I TO 53 TAXMANN.COM 366. IT WAS FURTHER SUBMITTED THAT THERE IS NO ENQU IRY WHICH HAS BEEN CONDUCTED BY THE ASSESSING OFFICER AND THE REASONS HAVE BEEN RECORDED BASED ON BORROWED SATISFACTION AND THE ENQUIRY DONE BY THE INVESTIGATION WING. IN SUPPORT, RELIANCE WAS PLACED ON THE DECISION OF HONBLE RAJASTHAN HIGH COURT IN CASE OF CIT VS. SHR EE RAJASTHAN SYNTEX LTD. 313 ITR 231. IT WAS FURTHER SUBMITTED THAT DUR ING THE COURSE OF ASSESSMENT PROCEEDING, THE ASSESSEE HAD RAISED AN O BJECTION REGARDING REASONS RECORDED BY THE AO FOR INITIATION OF ASSESS MENT PROCEEDINGS THROUGH ITS SUBMISSIONS DATED 24.08.2017, HOWEVER, WITHOUT DISPOSING OF THE SAID OBJECTION AND PASSING SPEAKING ORDER, T HE ASSESSING OFFICER HAS MADE ADDITION AND PASSED THE IMPUGNED ORDER WHI CH IS AN ILLEGALITY AND NOT IN ACCORDANCE WITH THE ORDER PASSED BY THE HONBLE SUPREME COURT IN CASE OF GKN DRIVESHAFTS (INDIA) LTD VS ITO 259 ITR 19. FURTHER, RELIANCE WAS PLACED ON THE DECISION OF HO NBLE RAJASTHAN HIGH ITA NO. 332 TO 334/JP2019 SHRI MANOJ DUBEY VS. ITO 6 COURT IN CASE OF M/S K.C. MERCANTILE VS. CIT (IN D.B. APPEAL NO. 292/2016). IT WAS ACCORDINGLY SUBMITTED THAT THE ORDER SO PAS SED BY THE AO CANNOT BE SUSTAINED FOR WANT OF JURISDICTION AND SHOULD BE SET- ASIDE. 7. PER CONTRA, THE LD. DR SUBMITTED THAT THE ASSESSING OFFICER HAS RECEIVED INFORMATION FROM THE INVESTIGATION WING TH AT THE ASSESSEE HAS DEPOSITED CASH OF RS. 2,97,000/- IN HIS BANK ACCOUN T AND HAS REPORTEDLY NOT RESPONDED TO THE SUMMONS ISSUED BY THE INVESTIG ATION WING, THEREFORE, BASIS SUCH INFORMATION IN HIS POSITION, THE ASSESSING OFFICER AFTER RECORDING REASONS HAS ISSUED NOTICE TO THE AS SESSEE. IT WAS SUBMITTED THAT AS LONG AS THERE IS NEXUS BETWEEN MA TERIAL AND FORMATION OF BELIEF THAT INCOME HAS ESCAPED ASSESSM ENT, THE SUFFICIENCY OF MATERIAL MAY NOT BE RELEVANT FOR ASSUMPTION OF J URISDICTION U/S 147 OF THE ACT. IN SUPPORT, RELIANCE WAS PLACED ON THE DECISION OF HONBLE RAJASTHAN HIGH COURT IN CASE OF UTTAM CHAND JAIN. I T WAS FURTHER SUBMITTED THAT INFORMATION RECEIVED FROM THE INVEST IGATION WING CONSTITUTE A TANGIBLE MATERIAL AND AFTER CONSIDERIN G THE SAME WHERE THE AO FORMED A BELIEF THAT THE INCOME HAS ESCAPED ASSE SSMENT, THE REOPENING CANNOT BE QUASHED. REGARDING THE CONTENT ION SO ADVANCE BY THE LD. AR REGARDING BORROWED SATISFACTION, IT WAS SUBMITTED THAT THE AO HAS DULY RECORDED HIS SATISFACTION IN THE INSTANT C ASE AND THEREFORE, THE CONTENTION SO ADVANCE BY THE ASSESSEE CANNOT BE ACC EPTED. REGARDING NON DISPOSAL OF OBJECTIONS RAISED BY THE ASSESSEE A GAINST THE REASONS RECORDED BY THE AO, IT WAS SUBMITTED THAT IT IS A M ERE TECHNICALITY WHICH CANNOT BE FATAL IN TERMS OF MAKING THE WHOLE PROCEE DING AS BAD IN LAW. IN SUPPORT, RELIANCE WAS PLACED ON THE DECISION OF HONBLE MADRAS HIGH ITA NO. 332 TO 334/JP2019 SHRI MANOJ DUBEY VS. ITO 7 COURT IN CASE OF HOME FINDERS HOUSING LIMITED VS IT O AND THE SLP AGAINST THE SAID DECISION HAS BEEN DISMISSED BY THE HONBLE SUPREME COURT AS REPORTED IN 94 TAXAMANN.COM 84. 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN THIS CASE, NOTICE U/S 148 O F THE ACT WAS ISSUED BY THE ASSESSING OFFICER ON 03.03.2017 WHICH WAS DU LY SERVED ON THE ASSESSEE ON 04.03.2017. IN RESPONSE, THE ASSESSEE S UBMITTED THAT RETURN OF INCOME FILED BY THE ASSESSEE ON 19.05.201 7 MAY BE TREATED AS RETURN OF INCOME FILED IN RESPONSE TO THE NOTICE U/ S 148 OF THE ACT. THE ASSESSEE FURTHER REQUESTED FOR THE REASONS ON THE B ASIS OF WHICH THE MATTER HAS BEEN REOPENED BY THE AO. THEREAFTER THE REASONS WERE SUPPLIED TO THE ASSESSEE AND THEREAFTER THE ASSESSE E FILED A LETTER DATED 24.08.2017 WITH THE ASSESSING OFFICER OBJECTING TO THE REASONS SO RECORDED BY HIM AND THE CONTENTS OF THE SAID LETTER READS AS UNDER:- THE ASSESSEE IS DEALING IN THE BUSINESS OF PURCHAS E AND SALE OF FISH AQUARIUMS & ALLIED PRODUCTS. THE ASSESSEE FILED ITS RETURN OF INCOME FOR ASSESSM ENT YEAR 2010-2011 ON 30/07/2011 DECLARING AN INCOME OF RS. 1,06,435/- ALONG WITH ITS RETURN OF INCOME. THE ASSESSEE ALSO FILED A STATEMENT OF COMPUTATION OF INCOME. THE ASSESSEEE RECEIVED A NOTICE DT. 04/03/2017 ISSU ED UNDER SECTION 148 OF THE ACT. INTER ALIA, STATING THAT TH E AO HAD REASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX FOR THE AS SESSMENT YEAR 2010-11 HAD ESCAPED ASSESSMENT WITHIN THE MEANING O F SECTION ITA NO. 332 TO 334/JP2019 SHRI MANOJ DUBEY VS. ITO 8 147 OF THE ACT AND CONSEQUENTLY, HE PROPOSED TO REA SSESS THE ASSESSEE'S INCOME FOR THE SAID YEAR. THE ASSESSEE FILED A RETURN ON DT. 19/05/2017 ACKNO WLEDGMENT NUMBER 777637460190517 IN RESPONSE TO YOUR ABOVE RE FERRED NOTICE U/S 148. THE ASSESSEE REQUESTED FOR THE REASONS FOR REOPENIN G AND PURSUANT TO ITS REQUEST, YOUR HONOUR PROVIDED THE R EASONS AS RECORDED. THE ASSESSEE WANTS TO OBJECT THE REASONS WHICH WERE RECORDED FOR REOPENING OF ASSESSMENT. THE REASON ARE AS UNDE R :- 'THE ASSESSEE HAS FILED HIS RETURN OF INCOME FOR TH E YEAR UNDER CONSIDERATION ON 30/07/2011 DECLARING TO TAL INCOME OF RS. 106440/-. THE ITO, JAIPUR CONDUCTED ENQUIRY IN THIS CASE. IT IS GATHERED THAT THE ASSES SEE HAS DEPOSITED CASH IN HIS BANK ACCOUNT AMOUNTING TO RS. 297000/-. SOURCE OF WHICH WAS FOUND UNVERIFIABLE. IN VIEW OF THE ABOVE AND ON THE BASIS OF MATERIAL AVAILABLE ON REC ORD I HAVE REASON TO BELIEVE THAT, INCOME OF RS. 2,97,000 /- HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTIO N 147 OF THE IT ACT 1961'. IN THE PRESENT CASE, THE PETITIONER QUESTIONS THE A SSUMPTION OF JURISDICTION TO REOPEN THE ASSESSMENT PRINCIPALLY O N THE GROUND ITA NO. 332 TO 334/JP2019 SHRI MANOJ DUBEY VS. ITO 9 THAT THERE HAS BEEN NO FAILURE ON THE PART OF THE P ETITIONER TO FULLY AND TRULY DISCLOSE ALL MATERIAL FACTS NECESSA RY FOR ITS ASSESSMENT. THE PETITIONER HAS NOT FAILED TO DISCLO SE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR ITS ASSESSME NT AND THAT THE REOPENING OF ASSESSMENT HAS BEEN OCCASIONED BY CHANGE IN OPINION, WHICH IS IMPERMISSIBLE. THE ASSESSEE HAS DEPOSITED CASH IN BANK ACCOUNT AMO UNTING TO RS. 2,97,000/. SOURCE OF WHICH WAS SALE PROCEEDS OF 22 KT PLAIN GOLD JEWELLERY AMOUNTING OF RS. 3,49,000/-. THE SOURCE OF BANK DEPOSITED IS VERIFIABLE AND FULL Y EXPLAINED. IN VIEW ABOVE FACTS YOUR HONOUR IS REQUESTED TO DRO P REASSESSMENT PROCEEDING AND DECIDE OBJECTION BY SPE AKING ORDER. 9. WE THEREFORE FIND THAT THE UNDISPUTED FACTS WHIC H ARE EMERGING FROM THE RECORDS ARE THAT IN RESPONSE TO NOTICE U/S 148, THE ASSESSEE FILED HIS RETURN OF INCOME, THE REASONS WERE REQUES TED TO BE SUPPLIED TO HIM WHICH WERE DULY SUPPLIED BY THE ASSESSING OFFIC ER AND THEREAFTER, THE ASSESSEE FILED HIS OBJECTIONS ON 24.08.2017 TO THE SAID REASONS GIVING DETAIL JUSTIFICATION OF SOURCE OF CASH DEPOS ITS IN HIS BANK ACCOUNT. ON THE SAME DATE, THE NOTICE U/S 143(2) WAS ISSUED AND THE MATTER WAS FIXED FOR HEARING ON 12.09.2017, THEREAFTER AFT ER CONSIDERATION OF THE SUBMISSIONS OF THE ASSESSEE, THE ASSESSMENT WAS COMPLETED U/S 143(3) R.W.S. 147 OF THE ACT VIDE ORDER DATED 22.12 .2017. FURTHER, FROM ITA NO. 332 TO 334/JP2019 SHRI MANOJ DUBEY VS. ITO 10 PERUSAL OF THE RECORDS AS WELL AS THE ASSESSMENT OR DER, WE FIND THAT THE ASSESSING OFFICER HAS PROCEEDED WITH THE ASSESSMENT PROCEEDINGS AND PASSED THE ORDER U/S 143(3) R.W.S. 147 WITHOUT DISP OSING OFF THE OBJECTIONS SO RAISED BY THE ASSESSEE THROUGH A SEPA RATE ORDER. FURTHER, THERE IS NO NARRATION EVEN IN THE ASSESSMENT ORDER THAT BEFORE COMPLETING THE ASSESSMENT PROCEEDINGS, THE OBJECTIO NS WERE DISPOSED OFF. DISPOSING OFF THE OBJECTIONS RAISED BY THE AS SESSEE AGAINST THE REASONS RECORDED BEFORE ISSUANCE OF NOTICE U/S 148 THOUGH NOT PART OF STATUTORY REQUIREMENT AS PRESCRIBED UNDER THE INCOM E TAX ACT, HOWEVER, THE SAME IS GUIDED BY THE DIRECTIONS ISSUE D BY THE HONBLE SUPREME COURT IN CASE OF GKN DRIVESHAFTS (INDIA) LT D (SUPRA). THERE IS THUS A CLEAR VIOLATION OF THE DIRECTIONS ISSUED BY THE HONBLE SUPREME COURT. THE QUESTION THAT ARISES FOR CONSIDERATION IS WHETHER SUCH VIOLATION OF THE DIRECTIONS ISSUED BY THE HONBLE S UPREME COURT IS A MERE TECHNICALITY AND BREACH OF SUCH TECHNICALITY C AN BE MADE GOOD BY REMANDING THE MATTER BACK TO THE FILE OF THE ASSESS ING OFFICER. ALTERNATIVELY, WHETHER THE SAME IS IN NATURE OF AN ILLEGALITY WHICH HAS PREJUDICED THE INTEREST OF THE ASSESSEE TO CHALLENG E THE SAME BEFORE THE COURTS AS THE ASSESSING OFFICER HAS ALREADY PASSED THE REASSESSMENT ORDER AND THUS CANNOT BE CURED AND WILL RESULT IN Q UASHING OF THE REASSESSMENT ORDER. IN THIS REGARD, WE FIND THAT S IMILAR ISSUE HAS COME UP FOR CONSIDERATION BEFORE THE HONBLE RAJASTHAN HIGH COURT IN CASE OF M/S K.C. MERCANTILE VS. CIT (SUPRA) WHEREIN THE TRIBUNAL HAS REMANDED THE MATTER BACK TO THE FILE OF THE ASS ESSING OFFICER FOR DISPOSING OFF THE OBJECTIONS AND IN THAT CONTEXT, T HE FOLLOWING SUBSTANTIAL QUESTION OF LAW WAS FRAMED BY THE HONB LE HIGH COURT WHICH READS AS UNDER: ITA NO. 332 TO 334/JP2019 SHRI MANOJ DUBEY VS. ITO 11 WHETHER UNDER THE FACTS AND CIRCUMSTANCES OF THE C ASE, THE LD TRIBUNAL WAS JUSTIFIED IN NOT DECLARING THE REASSES SMENT PROCEEDINGS AND CONSEQUENTIAL ASSESSMENT ORDER PASS ED THERETO AS NULLITY? AND THE RELEVANT FACTS AND FINDINGS ARE CONTAINED I N PARA 4, 4.1 AND 8 WHICH READS AS UNDER:- 4. COUNSEL FOR THE APPELLANT HAS CONTENDED THAT TH E PRESENT APPEAL IS ARISING OUT OF THE JUDGMENT AND ORDER OF THE TRIBUNAL WHEREBY TRIBUNAL HAS UPHELD THE CONTENTION OF THE A PPELLANT AND REMITTED BACK THE MATTER FOR REASSESSMENT WHICH WILL GIVE A SECOND INNING TO THE ASSESSING OFFICER WHO HAS TO DO REASSESSMENT WITHIN A PERIOD OF 9 MONTHS AND HE WIL L GET EXTENDED TIME OF LIMITATION WHICH IS NOT THE OBJECT OF THE INCOME TAX ACT. WHEN THE COURT HAS ALREADY FIXED TH E PERIOD, IT IS TO BE CONSTRUED IN A VERY STRICT SENSE AND HA S TO BE APPLIED. 4.1 IN SUPPORT OF HIS CONTENTION, HE HAS RELIED UPO N THE FOLLOWING DECISIONS: 1. KSS PETRON PRIVATE LTD. VS. ACIT, ITA NO. 227/2014, 03.10.2016 HOLDING AS UNDER:- ITA NO. 332 TO 334/JP2019 SHRI MANOJ DUBEY VS. ITO 12 7. ON FURTHER APPEAL, THE TRIBUNAL PASSED THE IMP UGNED ORDER. BY THE IMPUGNED ORDER IT HELD THAT THE ASSESSING OF FICER WAS NOT JUSTIFIED IN FINALIZING THE ASSESSMENT, WITHOUT HAV ING FIRST DISPOSED OF THE OBJECTIONS OF THE APPELLANT. THIS I MPUGNED ORDER HOLDS THE ASSESSING OFFICER IS OBLIGED TO DO IN TER MS OF THE APEX COURT'S DECISION IN GKN DRIVESHAFTS (INDIA) LTD., V /S ITO 259 ITR 19. IN THE AFORESAID CIRCUMSTANCES, THE ORDER OF TH E CIT(A) AND THE ASSESSING OFFICER WERE QUASHED AND SET ASIDE. H OWEVER, AFTER HAVING SET ASIDE THE ORDERS, IT RESTORED THE ASSESSMENT TO THE ASSESSING OFFICER TO PASS FRESH ORDER AFTER DIS POSING OF THE OBJECTIONS TO REOPENING NOTICE DATED 28 TH MARCH, 2008, IN ACCORDANCE WITH LAW. 8. WE NOTE THAT ONCE THE IMPUGNED ORDER FINDS THE A SSESSMENT ORDER IS WITHOUT JURISDICTION AS THE LAW LAID DOWN BY THE APEX COURT IN GKN DRIVESHAFTS (SUPRA) HAS NOT BEEN FOLLO WED, THEN THERE IS NO REASON TO RESTORE THE ISSUE TO THE ASSE SSING OFFICER TO PASS A FURTHER/FRESH ORDER. IF THIS IS PERMITTED, I T WOULD GIVE A LICENCE TO THE ASSESSING OFFICER TO PASS ORDERS ON REOPENING NOTICE, WITHOUT JURISDICTION (WITHOUT COMPLIANCE OF THE LAW IN ACCORDANCE WITH THE PROCEDURE), YET THE ONLY CONSEQUENCE, WOUL D BE THAT IN APPEAL, IT WOULD BE RESTORED TO THE ASSESSING OFFIC ER FOR FRESH ADJUDICATION AFTER FOLLOWING THE DUE PROCEDURE. THI S WOULD LEAD TO UNNECESSARY HARASSMENT OF THE ASSESSEE BY REVIVING STALE/ OLD MATTERS. 9 IN FACT, TO ENSURE THAT REOPENING NOTICE S ARE DISPOSED OF, EXPEDITIOUSLY THE PARLIAMENT ITSELF HAS PROVIDED IN SECTION 153(2) OF THE ACT A PERIOD OF LIMITATION WITHIN WHICH THE ASS ESSING OFFICER MUST ITA NO. 332 TO 334/JP2019 SHRI MANOJ DUBEY VS. ITO 13 PASS AN ORDER ON THE NOTICE OF REOPENING I.E. WITHI N ONE YEAR FROM THE END OF THE FINANCIAL YEAR IN WHICH THE NOTICE W AS ISSUED. IN FACT, SECTION 153 (2A) OF THE ACT AS IN FORCE AT THE RELE VANT TIME ITSELF PROVIDES THAT AN ORDER OF FRESH ASSESSMENT, CONSEQU ENT TO THE ORDER OF TRIBUNAL UNDER SECTION 254 OF THE ACT, WOULD HAV E TO BE PASSED WITHIN ONE YEAR FROM THE END OF THE FINANCIAL YEAR IN WHICH THE ORDER UNDER SECTION 254 OF THE ACT, WAS PASSED BY THE TRI BUNAL AND RECEIVED BY THE COMMISSIONER OF INCOME TAX. THE HONBLE RAJASTHAN HIGH COURT, THEREAFTER, HAS G IVEN ITS FINDINGS AS UNDER: 8. BEFORE PROCEEDING WITH THE MATTER, IT IS NOT OU T OF PLACE TO MENTION THAT THE LAW DECLARED BY THE SUPREME COURT IN GKM DRIVESHAFTS (SUPRA) CLEARLY HELD THAT THE PRELIMINA RY OBJECTION IS TO BE DECIDED AS THE FIRST, IT CANNOT BE DECIDED SU BSEQUENTLY. THE ARGUMENT WHICH HAS BEEN CANVASSED BY THE ASSESSEE I S REQUIRED TO BE CONSIDERED VERY SERIOUSLY MORE PARTICULARLY I N VIEW OF THE OBSERVATIONS MADE BY THE SUPREME COURT IN THE CASE OF KS PETRON PRIVATE LTD. (SUPRA) WHICH IS FOLLOWED IN HO TEL BLUE MOON (SUPRA), THE LAW DECLARED BY THE SUPREME COURT IS T AKEN IN TRUE SPIRIT WHETHER IT WILL OPEN A SECOND INNING IN HOW OWN. SECTION 153(3) IS TO BE READ VERY CAUTIOUSLY AS 153 POWERS ARE GIVEN TO THE DEPARTMENT, THE COURT HAS TO LOOK INTO WHETHER THE LAW DECLARED BY THE SUPREME COURT IS GIVEN AWAY OR PROT ECTED. IN THE PRESENT CASE, AS THE ASSESSING OFFICER HAS CLEARLY IGNORED THE LAW DECLARED BY THE SUPREME COURT, IN THAT VIEW OF THE MATTER, THE ISSUES WHICH ARE RAISED IN THE MATTER, THE TRIBUNAL OUGHT NOT TO ITA NO. 332 TO 334/JP2019 SHRI MANOJ DUBEY VS. ITO 14 HAVE REMITTED BACK FOR REASSESSMENT SINCE PERIOD OF LIMITATION HAS ALREADY EXPIRED AS THE AUTHORITY WILL GET EXTEN DED TIME OF LIMITATION BEYOND 9 MONTHS WHICH IS NOT THE OBJECT OF INCOME TAX ACT. 9. IN THAT VIEW OF THE MATTER, ON ISSUE NO. 1 AND 2, THE ORDER OF REASSESSMENT PASSED BY THE TRIBUNAL IS DECLARED NUL L AND VOID. THE QUESTIONS ARE ANSWERED IN FAVOUR OF ASSESSEE AN D AGAINST THE DEPARTMENT. 10. THE APPEAL OF THE ASSESSEE IS ALLOWED. 10. WE FIND THAT IN THE AFORESAID DECISION, THE HON BLE HIGH COURT HAS CONSIDERED THE DECISION OF HONBLE MADRAS HIGH COUR T IN CASE OF HOME FINDERS HOUSING LIMITED VS ITO(SUPRA) AS RELIED UPO N BY THE LD DR AND HAS FOLLOWED THE DECISION OF THE HONBLE SUPREME CO URT IN CASE OF KSS PETRON PRIVATE LTD. VS. ACIT (SUPRA). IN LIGHT OF ABOVE AND RESPECTFULLY FOLLOWING THE DECISION OF THE HONBLE JURISDICTIONA L HIGH COURT WHICH IS BINDING ON THIS TRIBUNAL, THE REASSESSMENT PROCEEDI NGS COMPLETED WITHOUT DISPOSING OFF THE OBJECTION RAISED BY THE A SSESSEE CANNOT BE SUSTAINED AND CONSEQUENT REASSESSMENT ORDER U/S 147 R/W 143(3) IS HEREBY QUASHED AND SET ASIDE. 11. THEREFORE, THE OTHER CONTENTIONS ADVANCED BY BO TH PARTIES AS WELL AS GROUNDS ON MERIT HAVE BECOME ACADEMIC, ARE NOT A DJUDICATED UPON AND ARE LEFT OPEN. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. 12. IN ITA NO. 333/JP/2019 AND 334/JP/2019, BOTH TH E PARTIES FAIRLY SUBMITTED THAT THE FACTS AND CIRCUMSTANCES OF THE C ASE ARE EXACTLY ITA NO. 332 TO 334/JP2019 SHRI MANOJ DUBEY VS. ITO 15 IDENTICAL AS IN ITA NO. 332/JP/2019 WHEREIN THE ORD ER HAS BEEN PASSED U/S 147 R/W 143(3) WITHOUT DISPOSING OFF THE OBJECT IONS RAISED BY THE ASSESSEE AGAINST THE REASONS RECORDED BY THE ASSESS ING OFFICER U/S 148 OF THE ACT. THEREFORE, FOLLOWING OUR FINDINGS AND DIRECTIONS CONTAINED IN ITA NO. 332/JP/2019, THE REASSESSMENT ORDER PASSED FOR THESE TWO YEARS ARE ALSO QUASHED AND SET-ASIDE. IN THE RESULT, ALL THREE APPEALS OF THE ASSESSEE A RE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 28/02/2020. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 28/02/2020. * SANTOSH VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI MANOJ DUBEY, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD-5(5), JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE { ITA NO. 332 TO 334/JP/2019} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR.