Ishwanti Devi, New Delhi V. ITO WARD 38(4), New Delhi

ITA 3564/DEL/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 0937 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 5 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-10-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 24-07-2022
• Assessment Year: 2010-2011
• Appeal Filed On: 23-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MAKING TOTAL
• Keywords: Reopening of assessment; Gift; Income from undisclosed sources; Period of limitation; Non compliance; Procedural lapse; Assessment record; Reason to believe; Set aside
• Section: 147; 69; 148; 143(3); 142(1); 234B; 260A; 201; 143(2); 191; 64; 72; 13

Judgement Text

Page | 1 INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “H”: NEW DELHI BEFORE SHRI B.R.R. KUMAR, ACCOUNTANT MEMBER AND SHRI ANUBHAV SHARMA, JUDICIAL MEMBER ITA No. 3564/Del/2019 (Assessment Year 2010-11) Ishwanti Devi, C/o. Rajesh Jain Associates, 49, Pushpanjali, Vikas Marg Extension, Delhi PAN:BMBPD2057G Vs. ITO, Ward-38(4), New Delhi (Appellant) (Respondent) Assessee by : Shri Rajesh Jain, CA Revenue by: Shri M. Baranwal, Sr. DR Date of Hearing: 19/07/2022 Date of pronouncement: 13/10/2022 O R D E R PER ANUBHAV SHARMA, J. M.: 1. The appeal has been preferred by the Assessee against the order dated 29.03.2019 of Ld Commissioner of Income Tax (Appeals)-13, New Delhi (hereinafter referred as Ld. First Appellate Authority or in short Ld. „FAA‟) in appeal No. 211/17-18 before it against the order dated 12.12.2017 passed u/s 147/143(3) of the Income Tax Act, 1961 (hereinafter referred as „the Act‟) by the ld. Assessing Officer, ITO, Ward- 38(4), New Delhi (hereinafter referred as the Ld. AO). 2. The facts in brief as can be culled out from the impugned orders are that in this case, TEP has been received CCIT-Delhi-VII vide letter no. 319 dt. 05/06/2012 alongwith copy of registered purchase deed regarding purchase of 04 bighas and 16 biswal of agricultural land out of khasra no. 32/ 13/min(0-10)( 23/16 (0-13),17(2-0) &24(l-03) in the revenue estate Page | 2 of village Singhola, Delhi for a consideration of Rs. 53,00,000/- on 13.01.2010 and Rs. 2,12,000/- as stamp duty paid thereon. All the payments were made in cash. It has been stated by Smt. Ishwanti that she is not having PAN and never filed her ITR. The case of the Assessee was reopened u/s 148 with prior approval of Range Head i.e. JCIT, Range-38, 8& Pr.CIT, Delhi-13 vide approval F.No. Pr.CIT- 13/148 approval/2016-17/4088 dated 17.03.2017 on the above mentioned ground. The assessee had not filed income tax return for the F.Y. 2009-10 and she deposited huge cash in bank account. Accordingly, the assessee vide notice u/s 148 of the IT Act, 1961 dated 17,03.2017, was required to submit the return of income for A.Y. 2010-11 and the notice was issued and served upon the Assessee through speed post no. ED529773481IN. On 16.08.2017, ld AR of the assessee attended and filed a letter along with filed a manual ITR for A.Y. 2009-10, 2010-11 & 2011-12 in this office. In connection with the assessment proceedings u/s 148 for the A.Y. 2010-11 following notices u/s 148/142(1) were issued and served but remained uncomplied with. S.No. Notice u/s Date of Notice Compliance Date Remarks 1. 148 17.03.2 017 Within 15 days from the date of issue Neither anybody appeared nor any written reply has been filed 2. 142(1) 23.06.2 017 30.06.2017 Neither anybody appeared nor any written reply has been filed. 3 142(1) 28.07.2 017 04.08.2017 Neither anybody appeared nor any written reply has been filed. 4 143(2) 11.09.2 017 20.09.2017 Neither anybody appeared nor any written reply has been filed. 5. Show Cause u / s 1 (b) & 1(c) of section 144 of the I T Act, 1961 13.11.2 017 20.11.2017 None attended A show cause was issued on 13.01.2017 and served upon the assessee through speed post and hearing in case was fixed on Page | 3 20.11.2017. Assessee was asked as to why purchase of property amounting Rs. 55,12,000/- including stamp duty of Rs. 2,12,000/- should not be added back to her income for A.Y. 2010-11. On 20.11.2017. None attended and nor any written reply was filed. A final show cause was issued on 27.11.2017 and served upon the assessee through speed post and Ld AO fixed hearing for 05.12.2017. The assessment order mentions that the AR of the assessee also attended the case on 27.11.2017 and filed a letter dt. 27.11.2017 consisting of 32 pages and proceedings were adjourned to 05.12.2017. On 05.12.2017 neither anybody attended and nor any written reply was filed. Ld AO observes that the reply filed on 27.11.2017 was thoroughly perused/studied. Ld. AO noticed that only cash amounting to Rs. 4,20,042/- is debited on 27.01.2009 but four cheque amounting to Rs. 1,00,000/- each credited on various date. Ld AO concluded that it is clear that the amount of Rs. 4,00,0-00/- is not paid to seller. Therefore, same amount is added back to returned income of the assessee. Further, the Assessee has furnished a detail in which she stated that her son has given a gift of Rs.36,00,000/- to her. However, Ld. AO observed that the Assessee has not produced any evidence regarding gift of Rs. Rs.36,00,000/- which may show that Rs.36,00,000/- is transferred from bank account of her son to bank account of the assessee. Therefore, the amount of Rs.36,00,000/- is added back to returned income of the assessee. Next, the ld AO observed that the Assessee has furnished a detail in which she stated that she has cash in hand amounting to Rs. 10,01,985/- as on 01.01.2009. But the same was not showing in bank statement. Same was added. Lastly, the AO observed, that the Assessee had shown agriculture income during the year of Rs. 3,60,105/- but receipts/evidence of Rs. 1,60,000/- is not produced during the assessment proceedings. The same amount to Rs, 1,60,000/- is disallowed and added back to the returned income of the assessee. Page | 4 Therefore, considering concealed income of Rs. 51,61,985/- (Rs. 36,00,000/- and 10,01,985/-+1,60,000/- +4,00,000/-) same was added to the total income of the Assessee as income from undisclosed sources. Ld AO further held that the Assessee has failed to comply with all the notice and as a result there is no explanation for purchase of immovable property amounting to Rs. 51,61,985/-. So, the amount of Rs. 51,61,985/-was treated as unexplained investment u/s 69 of the IT Act, 1961 and added to the income of the assessee. With these remarks, total income was computed as under:- Income as per return Rs. 1,50,000/- 1. Addition u/s 69 of IT Act, 1961 Rs. 51,61,985/- (as above discussed) Rs. 53,11,985/- Taxable income Rs. 53,11,985/- Rounded off under section 288 A of the Income tax Act, 1961 at Rs.53,12,000/- 3. The ld CIT(A) confirmed Rs. 6,51,985/- as undisclosed cash in hand of the Assessee out of total addition of Rs. 10,01,985/- and further confirmed the remaining addition. 4. Now, the Assessee is in appeal before the Tribunal and has raised the following grounds of appeal in form no. 36:- “1. That the learned Commissioner of Income Tax (Appeals), Delhi has erred both in law and on facts in sustaining the initiation of proceedings under section 147 of the Act and, completion of assessment u/s 147/143(3) of the Act which were without jurisdiction and deserves to be quashed as such. 1.1 That the learned Commissioner of Income Tax (Appeals) has failed to appreciate that, there was no tangible, relevant, specific and reliable material on record on the basis of which, it could be held that, there was any reason to believe with the learned Assessing Officer that income of the appellant had escaped assessment and, in view thereof, the proceedings initiated were illegal, untenable and therefore, unsustainable. 1.2 That the learned Commissioner of Income Tax (Appeals) has also failed to appreciate that approval granted was Page | 5 mechanical approval and hence initiation of proceedings u/s 147 of the Act on this ground is invalid. 2. That on the facts and circumstances of the case, the reassessment proceedings are liable to be quashed as the objections against the initiation of proceedings were not disposed off before passing reassessment Order. 3. Without prejudice to above legal Grounds, on the facts and circumstances of the case, the learned CIT(A) erred in upholding addition of Rs. 48,11,985/- in the returned income without considering judicially the submissions and evidences with respect to source of cash paid for purchase of Agricultural Land and arbitrarily rejecting bonafide explanations of the appellant submitted during the Assessment and Appellate Proceedings. That the assessing officer completed the proceedings and passed Assessment Order in haste without giving adequate opportunity. 4. That the learned Assessing Officer erred in making addition of Rs 48,11,985/- u/s 69 of the Act, treating the amount paid for purchase of Agricultural Land as unexplained investment, arbitrarily rejecting the explanations of the appellant about the source of income. 5. That the Order of the CIT(A) and Assessing Officer are arbitrary and not based on the facts of the case & as per law and hence additions made by tb 2 Assessing Officer and sustained by the CIT(A) are totally illegal. 6. That there was 110 justification for levying of interest u/s- 234A & 234B of the Act on the facts of the case and as per law.” 5. The Assessee has also raised the following additional grounds of appeal:- “1. That the Learned Assessing Officer erred in passing Assessment order u/s 147/ 143(3) of the Act without issuance of mandatory statutory notice under section 143(2) prescribed under the Act.” 6. Heard and perused the record. At the outset it is held that as the additional ground is arising out of jurisdictional issues and is covered in substantial jurisdictional ground no 1, so the additional ground is admitted. Page | 6 7. Submission of appellant/assessee; On behalf of the Assessee it was submitted by the ld Counsel that the Assessee is an illiterate lady, aged 69 years, who owned several bighas of agricultural land and has not been filing the return as her main source of income is from agriculture. It was submitted that she was served a notice u/s 142(1) of the Act upon which she furnished her return for Assessment Year under appeal and subsequent years with a covering letter dated 16.08.2016 and the copy of the letter and the returns have been placed on record at page Nos. 3 to 10 of the paper book. 8. Ld. Counsel submitted that thereafter again issued notice u/s 142(1) dated 28.07.2017 was served and authorized representative of the Assessee attended the proceedings on 16.08.2017 and it was conveyed by the ld AO that notice u/s 148 of the Act has been issued in March 2017 and there was no compliance by the Assessee. 9. The ld counsel submitted that in fact the Assessee had not received any notice u/s 148 of the Act and the ld AO merely showed the acknowledgement received being sent by speed post whereas the Assessee denied receiving such notices. 10. It was submitted that the Assessee filed return under protest in response to the notice u/s 148 through online mode on 12.08.2017 declaring income of Rs. 1,50,000/-. The ld Counsel submits that the ld AO furnished the reasons to believe for issuance of notice u/s 148 on 11.09.2017. It was submitted that the same were without date of initiation of proceedings u/s 147 of the Act and under the signature of then AO Shri K.S. Chauhan who had put date as on 11.09.2017. 11. The ld Counsel referring to page No. 16 of paper book, where reasons to believe have been submitted, made a contention that the reasons to believe recorded u/s 147 of the Act are merely reasons to suspect and contain incorrect fact a non filing of income tax return. Page | 7 12. In regard to Ground Nos. 1 and 1.1 whereby the Assessee has challenged the reasons to believe it was submitted that the same established as if the ld AO intended to make roving enquiry about source of purchasing of agricultural land and there was no material/ information or live link in the reasons. It was submitted that although vide letter dated 16.08.2016 the Assessee has filed return, but still in the reasons the ld AO mentioned that “however some information is available in this office” and mentioning that wrong fact that the Assessee has not filed return. It was submitted that the reasons recorded are vague, arbitrarily and without application of mind. Further, it was submitted that the ld CIT(A) has given approval u/s 151 of the Act in a very mechanical manner. In regard to the non decision of reasons, the ld counsel relied on the on following judgments:- i. Calcutta Discount Co. Ltd. 41 ITR 191 (S.C.) ii. Chhugamal Rajpal 79 ITR 603 (S.C.) and Lakhmani Mewal Das 103 ITR 437 (S.C.) iii. Commissioner of Income Tax vs. G&G Pharma (2015) 384 ITR 147 (Del.) iv. Signature Hotels Pvt. Ltd. vs. Income Tax Officer (2011) 338 ITR 51 (Del) v. AGR Investment Ltd. vs. Additional Commissioner of Income Tax (2011) 336 ITR 146 (Del.) vi. AG Holding vs. Income Tax Officer (2013) 352 ITR 364 (Del) vii. CIT vs. SFIL Stock Broking Limited (2010) 325 ITR 285 (Del. viii. Sarthak Securities Co. Pvt. Ltd. vs. ITO (2010) 329 ITR 110 (Del.) ix. CIT Vs. Insecticides (India) Ltd (2013) 357 ITR 330 (Del) 13. Next while questioning and alleging mechanical approval granted u/s 151 of the Act, ld counsel relied on the judgment of Hon'ble Supreme Court in case of CIT Vs. S. Goyanka Lime Chemical Ltd (2015) 64 Page | 8 taxmann.com 313 (SC), Hon'ble Delhi High Court in case of Pr. CIT Vs. M/s. NC Cables Ltd in ITA NO. 335/2015, Hon'ble Delhi High Court in case of United Electrical Co. Pvt. Ltd Vs. CIT 258 ITR 317, ITAT Mumbai Bench order in case of Amarlal Bajaj Vs. ACIT (2013) 36 CCH 0631. 14. It was further submitted in regard to ground No. 2 the objections filed by the Assessee against initiation of proceedings u/s 147 of the Act were not disposed off by the ld AO as has been mandatory as directed by Hon'ble Supreme Court in the case of GKN Drive Shaft Pvt. Ltd 259 ITR 19 (SC). 15. The ld counsel brought to the knowledge the detailed objections dated 27.11.2017 available at pages 17 to 23 of the paper book. It was submitted that the ld CIT(A) failed to take note of the proposition of law in case of GKN Drive Shaft Pvt. Ltd (supra) and wrongly relied on the judgment of the Madras High Court in Home Finder Housing Society Ltd 404 ITR 611. It was submitted that when there was judgment of Hon'ble Supreme Court in GKN Drive Shaft Pvt. Ltd (supra) there was no reason to rely on Hon‟ble Madras High Court judgment. It was submitted that on 18.05.2018, SLP against the Home Finder Housing Society Ltd was dismissed without anything discussed on merits, therefore, as such there was no verdict of Hon'ble Supreme Court in Home Finder Housing Society Ltd case distinguishing from GKN Drive Shaft Pvt Ltd case. The ld counsel specially relied on the judgment of the Hon‟ble Supreme Court in without speaking order has no persuasive value. 16. Further, the ld counsel relied on the judgment of the Hon‟ble Division Bench of Hon‟ble Delhi High Court in case of Ferrous Infrastructure Pvt. Ltd 120 DTR 281 and Tupperware India Pvt. Ltd 236 Taxmann 494 to contend that in these judgments the Hon‟ble Jurisdictional High Court has followed the judgment of Hon'ble Supreme Court in case of GKN Drive Shaft while holding that failure to pass order on objections filed u/s 147 renders assessment orders vide ITAT Delhi Bench order in case of Sri Chand Singh case in ITA No. 3860 and Page | 9 3861/Del/2016, ITAT Bangalore Bench in case of PH Chandrashekher in ITA No.1080/Bang/2015 to same effect. 17. The ld counsel further submitted that notice u/s 143(2) of the Act has not been issued by AO after the appellant/ Assessee had furnished income tax return in response to notice u/s 148 of the Act. It was submitted that the Assessee has placed on record at page No. 51 to 52 of the paper book the order sheet of reassessment folder obtained from ld AO and there is no entry of issuance of notice u/s 143(2) of the Act. It was submitted that the ld CIT(A) has not decided this issue on merits and merely justified the action of the ld AO by relying on the judgment of Hon'ble Delhi High Court in case of Madhya Bharat Energy Corporation Ltd 337 ITR 389 case. It was submitted that in fact Hon‟ble Delhi High Court has re-considred the decision in case of Madhya Bharat Energy Corpration Ltd in jai Shiv Shanker P. ltd 383 ITR 448 and Pr. Cit Vs. Silverline and another 383 ITR 455, while holding that failure of Ld. AO in issuing notice to the Assessee u/s 143(2) of the Act is fatal to the order of reassessment passed u/s 147/143(3) of the Act 18. Submission of Revenue; On the other hand the ld Sr. DR took the bench across the original assessment record which was summoned on the direction of the Bench vide previous proceedings. It was submitted that before recording reasons to form belief for the purpose of initiation of proceedings u/s 147, the exercise of verification was also carried out by the AO by issuing several letters to the assessee. In response the AR of the assessee informed that nor the assessee does have PAN nor she files her ITR. Based on the fact that it is a 'No ITR' case and in possession of specific information of purchase of land by the assessee by making total payment of Rs.55,12,000/- in cash towards cost & stamp duty, the AO recorded the reasons to form belief for the purpose of initiation of proceedings u/s 147. The JCIT, the Range-head, recorded his satisfaction on 15.03.2017. Thereafter the Pr.CIT has recorded his satisfaction & the approval was conveyed to the AO by a covering letter dt.17.03.2017. The Page | 10 notice dt.17.03.2017 u/s 148 was then issued by the AO and the same was sent by speed-post to the assessee. The speed-post tracking shows that the notice was delivered to the assessee on 21.03.2017. 18.1 As regards filing of manual ITRs for the AY 2009-10, 2010-11 and 2011-12 under a covering letter dt.16.08.2016 (Page-2 of the paper-book filed by the assessee) by the AR of the assessee, it was submitted that the letter is available on the assessment record. However the enclosures to this letter are 3 ITRs for AY 2009-10, 2010-11 & 2011-12 and these ITRs are computer generated, these are neither verified nor signed & the date appearing on the verification columns of the ITRs for AY 2009-10 & 2010-11 are 11.08.2017 & 12.08.2017. It is submitted that obviously these ITRs were prepared on 11.08.2017 & 12.08.2017 and can't be enclosure to a letter written on 16.08.2016 i.e. a date prior to it's preparation. In view of these glaring facts, it was submitted that the date i.e. 16.08.2016 appearing on this letter of the AR transpires to be an advertant mistake which in all probability may be 16.08.2017. 18.2 It was submitted on the basis of the record that in fact the notice dt.11.09.2017 u/s 143(2) was served on the AR of the assessee same day which is within prescribed statutory time. The grounds of appeal as well as submissions of the assessee in this regard are factually incorrect. 18.3 As regards non-disposal of objections of the assessee it was submitted that no express objection has been filed by the assessee after 'the reasons to belief and initiation of proceedings u/s 147 were provided to the assessee on 11.09.2017. It is submitted that most of the High Courts have held that non-compliance of GKN Driveshafts directions of Hon'ble Supreme Court in respect of non-disposal of objections filed by the assessee against the reopening is only procedural /administrative mistake and the matter was set aside to the AO for disposal of objections by a speaking order in a reasonable time. Ld Sr. DR relied Judgment in Scan Holdings P Ltd. v ACIT[2018] 402 ITR 290(Delhi), to contend that where A.O. rejected objections filed by the assessee without Page | 11 elucidating and dealing with contentions and issues raised in objection letter, order was set aside and matter was remanded back for disposal afresh. Reliance was also placed on Kamlesh Sharma v ITO[2009]287 ITR 337(Delhi); Keshav Shares & Stocks Ltd. [2008J326 ITR 553(Delhi); Areva T8iD Ltd. 294 ITR 233(Madras) to contend that non-disposal of objection is procedural irregularity and was set aside to AO. 18.4 He relied PCIT v Sagar Developers [2016] 72 taxmann.com 321(Guj), to contend that requirement of supplying the reasons recorded by the AO and permitting the assessee to raise objections and to decide the same by the AO by a speaking order are not part of the statutory provisions, but are created under the judgement of Supreme Court in the case of GKN Driveshafts. Any default on the part of the AO is administrative in nature suffering from breach of principle of natural justice. In such cases, the decision making process should be placed at a stage where the defect is detected rather than to permanently annul the action of the authority. He pointed out that in the above decision, Hon Gujarat High Court has considered the order of Hon‟ble Delhi High Court in the case of Ferrous Infrastructure (P) Ltd. V DCIT[2015] 63 taxmann.com 201 in which a contrary view was taken. 18.5 Ld Sr DR submitted that in Home Finders Housing Ltd. V ITO [2018] 93 taxmann.com 371(Mad), it has been held by Hon‟ble Madras High Court that the disposal of objections is in the value of a procedural requirement to appraise the assessee of the actual grounds which made the Assessing Officer to arrive at a prima facie satisfaction that there was escape of assessment warranting reopening the assessment proceedings. The disposal of such objection must be before the date of hearing and passing a fresh order of assessment and further held that "Such a violation in the matter of procedure is only an irregularity which could be cured by remitting the matter to the authority." It was submitted that SLP against the said order has been Page | 12 dismissed by Supreme Court in Home Finders Housing Ltd. v ITO [2018]94 taxmann.com 84(SC) and the matter has reached to finality and rightly relied by CITA(A). 19. Ground no 1 and additional ground no 1 are taken up together as same are based on common questions of fact and law and same can be decided by taking up the first objections one after other. The first being that the Assessee did not receiving the notice u/s 142(1)/148. The ld DR has successfully brought on record the fact that the letter dated 16.08.2016 available at page No. 3 of the paper book and heavily relied on behalf of the Assessee carries a wrong date and the correct state of affairs is that the year mentioned is incorrect because the income tax return for Assessment Year 2009-10, 2010-11 and 2011-12 along with computation of income is available with the assessment record and same showe that on 11.08.2017 return for Assessment Year 2009-10 was verified. Similarly for Assessment Year 2010-11 it was verified on 12.08.2017. So obviously the same cannot be enclosure to a letter to be written on 16.08.2016 available at page No. 3 of the paper book. 20. The ld DR has brought on record the fact that notice dated 17.03.2017 was issued to the Assessee for the purpose of section 148 of the Act and the notice was sent through speed post to the Assessee. The copy of the letter dated 17.03.2017 is made available at page No. 27 of the paper filed by the revenue and page No. 28 is the copy of the track consignment showing booking of letter on 20.03.2017 and it is delivered to the Assessee on 21.03.2017. 21. The Discussion; Now as the matter of fact, the Assessee in its letter dated 28.03.2017 mentioned the fact that notice u/s 142(1) of the Act was issued on 28.07.2017 calling the Assessee to file return of income for Assessment Year 2009-10, 2010-11 and 2011-12. This notice u/s 142(1) dated 28.07.2017 is on record at page NO. 11 of the paper book of the Assessee. Also when the Assessee had replied vide letter dated 28.08.2017 available at page no 13 of the paper book of the Assessee, Page | 13 she had mentioned of the fact of being acknowledged by the Ld AO that the notice u/s 148 was issued on 17.03.2017 and it was delivered to the Assessee and the Assessee admitted that she could not verifiy the status of the delivery of the postal article. Thus for alleged non issuance of the notice u/s 148 and 142(1) of the Act appellant assessee cannot be benefited. 22. Coming to the additional ground of the Assessee for not issuance of the statutory notice u/s 143(2) of the Act. Again the ld DR has submitted on the basis of assessment record a copy of the letter dated 11.09.2017 where by this notice was served upon by the Assessee through her AR and the acknowledgement to that effect is endorsed on the letter itself available at page No. 29 of the paper book of the revenue. As this fact was confronted on the basis of the assessment record available with Ld. Sr DR it could not be rebutted or clarified on behalf of the Assessee. 23. The next important issue under these gorunds is non disposal of the objections of the Assessee as required to be disposed off under the mandate of the Hon'ble Supreme Court in GKN Driveshaft Case. The ld Sr. DR failry accepted that this objections were not disposed off but has tried to taken submission that no express objections have been filed by the Assessee after „the reasons to belief‟ and initiation of proceedings u/s 147‟ were provided to the Assessee on 11.09.2017. In this context on behalf of the Assessee at page No. 17 to 23 of her PB the response under section 142(1) notice is made available wherein the objection in the light of judgment of the Hon'ble Supreme Court in GKN Drive Shaft Case have been submitted and which include questioning the initiation of process due to non service of notice u/s 147 of the Act in due time and further that satisfaction recorded is not proper, lacks sanctity of facts and issued after mechanical approval. Apart from that the Assessee has placed reliance on the fact on merits. 24. Now the question necessary for adjudication is if non disposal of objections to reopening of assessment u/s 147/148 of the Act makes the Page | 14 assessment order void with no legal consequence or irrregularity does not vitiate the whole assessment and matter can be remanded to the ld AO. 25. In this context the judgment relied on behalf of the Assessee are two judgments of jurisdictional High Court in case of Ferrous Infrastructure Pvt. Ltd case (supra) and Tupperware India Pvt Ltd. case (supra) and a judgment of coordinate bench at Delhi in the case Shri Chand Singh in ITA No. 3860 and 3861/Del/2016, of Bangalore Bench in ITA No. 1080/bang/2015 in case of ITO Vs. P.H. Chandrashekar and it is contended that assessment is void and be set aside and cannot be restored by way of remand to AO. 26. It can be appreciated that the ld CIT(A) had followed the judgment of Hon‟ble Madras High Court in case of Home Finders Housing Society Ltd (supra) holding that it is procedural lapse and SLP of the Assessee has been dismissed by Supreme Court vide order dated 18.05.2018. In that context contention of ld counsel for Assessee that dismissal of SLP without going on merits cannot be considered to be acknowledgment of the ratio held by Hon‟ble Madras High Court deserves to be sustained and as there is no finding on merits by Honble Apex Court that this is a mere procedural lapse. 27. Now taking into consideration the arguments of Ld. AR, it can be observed that judgment of Hon'ble Delhi High Court in Ferrous Infrastructure Pvt. Ltd case was in regard to a writ petition preferred by the Assessee while the judgment in the case of Tupperware Pvt Ltd case was a regular appeal u/s 260A of the Act arising out of order of Tribunal. In Ferrous Infrastructure case by judgment dated 21.05.2015 Hon‟ble High Court considered the case where Hon‟ble High Court had material before it on factual situation where reasons were recorded on 18.09.2012 and they were furnished to the Assessee on 18.09.2012 but the notice u/s 148 was shown to have already been issued on 30.08.2012. So there was patent illegality in proceedings which made the assessment not sustainable and also further Hon‟ble High Court Page | 15 found that a separate speaking order was not passed and the objection were dealt with by the ld AO in the assessment order itself. But primarily on merits also the assessment was found to out of irregular exercise of power to issue notice and for that reason possibly the assessment order was set aside and not remanded . 28. In Tupperware case by judgment dated 10.08.2015, the Hon‟ble High Court was dealing with the appeal of the revenue which has urged whether in the facts and circumstances of the case the ITAT was justified in holding that the reassessment proceeding u/s 147/148 of the Act were not legally initiated. In that case the ld CIT(A) had agreed with the Assessee that procedure laid down by the Hon'ble Supreme Court in GKN Drive Shaft Pvt. Ltd (supra) case was not followed but held it was a curable technical mistake. However, on merits the ld CIT(A) had deleted the disallowance and it was not challenged by the revenue before ITAT. Accordingly, the Hon‟ble High Court observed in para No. 9 as under:- “9. Consequently, for both the aforementioned reasons, viz., that there was a failure by the AO to comply with the mandatory requirement of disposing of the objections of the Assessee to the reopening in terms of the law explained by the Supreme Court in G.K.N. Driveshafts (India) Ltd. (supra) as well as on account of the failure of the Revenue to challenge before the ITAT the order of the CIT (A) deleting on merits the disallowance made by the AO of the management service fee consequent upon reopening of the assessment, there appears to be no need to examine the issue projected by the Revenue in this appeal viz., the justification for re- opening the assessment under Section 147/148 of the Act.” 29. Thus, these are two were cases where on merits otherwise there were no case of revenue and so the Hon‟ble High Court may have preferred to not remand the matter. Pertinent to observe here is that in GKN Drive Shaft Pvt. Ltd (supra) the Hon‟ble Supreme Court has laid down the mandate of supply of the reasons for reopening and disposal of the objection to such reopening. The remedy in case of non disposal of the objections or alleged irregularity in disposal of the objections, have evolved thereafter. Page | 16 30. So, in Scan Holder Pvt. Ltd case relied by the Revenue, by judgment dated 08.01.2018, which is in fact post judgments in Ferrous Infrastructure Pvt. Ltd case (supra) and Tupperware India Pvt Ltd. case (supra), Hon'ble Delhi High Court had set aside the assessment order with a direction of remand to the AO to pass a fresh order as Hon‟ble High Court had concluded that the AO has merely observed and recorded that the objections raised by the Assessee were untenable and wrong, without elucidating and dealing with the contentions and issues raised in the objections and otherwise on merits no case was discussed. 31. Reference can also be made to the judgment of Hon'ble Delhi High Court in case of Divya Capital one Private Ltd in WP(c) No. 7406/2022 by order dated 12.05.2022 was dealing with the case where the Assessee had challenged the notice dated 17 th March, 2022 issued u/s 147A(b) of the Act as well as the order dated 04.04.2022 passed by the Assessing Officer u/s 148(d) and the consequential impugned notice dated 04.04.2022 issued u/s 148 of the Act. Hon‟ble High Court while dealing with the issue observed in para 7 as under:- “7. This Court is of the view that the new re-assessment scheme (vide amended Sections 147 to 151 of the Act) was introduced by the Finance Act, 2021 with the intent of reducing litigation and to promote ease of doing business. In fact, the legislature brought in safeguards in the amended re-assessment scheme in accordance with the judgment of the Supreme Court in GKN Driveshafts (India) Ltd. v. ITO, (2003) 259 ITR 19 (SC) before any exercise of jurisdiction to initiate re-assessment proceedings under Section 148 of the Act.” 32. Thereafter, the Hon‟ble High Court quashing the order under challenge remanded back to the file of AO for fresh determination and AO was directed to pass a fresh reasoned order u/s 148A (d) of the Act. Thus acknowledging that violation of mandate of GKN Driveshafts (India) Page | 17 Ltd does not mandate setting aside the assessment order only and issue can be remitted back to AO. 33. Lastly, in the case relied by Ld. CIT(A), Hon‟ble Madras High Court in M/s. Home Finders Housing Ltd. Case was dealing with a situation where Hon‟ble Single Judge had set aside the assessment completely for non disposal of the objections against reopening and in the appeal the Hon‟ble Division Bench held; “25. The enactments like the Land Acquisition Act, 1894, contain mandatory provisions like Section 5A, the non compliance of which would vitiate the declaration under Section 6 of the Act. Even after quashing the declaration for non compliance of Section 5A, the Court would permit the conduct of enquiry and pass a fresh declaration within the period of limitation. 26. We therefore make the position clear that non compliance of the procedure indicated in the GKN Driveshafts (India) Ltd., would not make the order void or non est. Such a violation in the matter of procedure is only an irregularity which could be cured by remitting the matter to the authority. The first issue is accordingly answered against the appellant.” 34. Thus in any case if Ld. CIT(A) was relying the M/s. Home Finders Housing Ltd. Case of Hon‟ble Madras High Court, then in any case it could not have rested the matter with observations that inspite of non disposal of the objections the reassessment will remain valid. 35. Thus, what can we concluded is that where the case of revenue is not otherwise examined and found not sustainable on merits, then merely for non disposal of the objections to reopening, the re-assessment order though suffers from jurisdictional defect, still the issue requires to be restored to the file of Ld. AO by way of remand direction to decide the objections against the reopening. 36. In the light of aforesaid discussion ground No. 1 and additional Ground No. 1 are decided in favour of the Assessee. The appeal is allowed and thereby setting aside the impugned re-assessment order the Page | 18 issue of disposal of the objections of the assessee against the reopening of assessment, is restored to the file of the Ld. AO who shall pass a fresh order on the objections to reopening, filed by the Assessee. Order pronounced in the open court on 13/10/2022. -Sd/- -Sd/- (B.R.R. KUMAR) (ANUBHAV SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 13/10/2022 A K Keot Copy forwarded to 1. Applicant 2. Respondent 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, New Delhi