Taj Enterprises Ltd., New Delhi V. DCIT, New Delhi

ITA 4332/DEL/2010

• Counselvise Citation: 433220114 RSA 2010
• Duration Of Justice: 3 year(s) 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-08-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 26-06-2014
• Assessment Year: 1997-1998
• Appeal Filed On: 22-09-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SAMEER SHARMA
• Assessee Lawyers: S K KHANDARI
• Section: 143(3); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : H N EW DELHI BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER AND SHRI J.S. REDDY , ACCOUNTANT MEMBER IT A NO . 4332 / DEL / 20 10 ( A . Y . 1997 - 1998 ) TAJ ENTERPRISES LTD. VS. D . C . I . T . , CIRCLE16(1) 2, SARDAR PATEL MARG NEW DELHI . NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.K. KHANDARI, FCA RESPONDENT BY : S HRI S AMEER SHARMA, SR. D.R. ORDER PER J.S. REDDY , A . M : 1. THIS IS AN APPEAL FILED BY T HE ASSESSEE , DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS) - XIX DATED 01.07.2010 FOR THE A.Y. 1997 - 98. 2. FACTS IN BRIEF : T HE ASSESSEE IS A COMPANY . IT FILED ITS RETURN OF INCOME ON 29.11.1997 DECLARING TOTAL INCOME OF RS.46,18,490 / - . A N ORDER OF ASSESSMENT UNDER SECTION 143(3) WAS PASSED ON 16.03.2000 ACCEPTING THE RETURN ED INCOME. THEREAFTER, THE ASSESSMENT WAS RE OPEN ED UNDER SECTION 147 B Y ISSUE D OF NOTICE UNDER SECTION 148 OF THE I.T. ACT , ON 05.06.2002 . A N ORDER UNDER SECTION 14 7 READ WITH SECTION 143(3) OF THE I.T. ACT WAS PASSED ON 31.12.2003, IN WHICH A CAPITAL GAIN OF ITA NO. 4332/DEL/2010 2 RS.47,90,000/ - WAS TREATED AS SHORT TERM CAPITAL GAIN. AGGRIEVED THE ASSESSEE CARRIED THE MATTER IN APPEAL CHALLENGING THE REOPENING AS WELL THE MERITS. 3. ON A PPEAL, THE FIRST APPELLATE AUTHORITY UPHELD THE ORDER OF THE ASSESSING OFFICER VIDE ORDER DATED 30.08.2004. ON FURTHER APPEAL , THE E B ENCH OF THE ITAT, NEW DELHI IN ITA NO. 5253/D/2004, THE ORDER DATED 05.08.2008 ON P ARA 14, P AGES 20 TO 22 WHICH READS AS UNDER: - 14. WHEREAS ON EXAMINING THE ABOVE CASE LAW (SUPRA) RELIED UPON BY THE LD. AR FOR THE ASSESSEE, WE FIND THAT THE JURISDICTIONAL HIGH COURT OF DELHI IN HE ABOVE CASES (SUPRA) HAVE CLEARLY HELD THAT IN VIEW OF THE DECISION OF APEX COURT IN THE CASE OF GNK DRIVESHAFTS (INDIA) LTD. (SUPRA) THE AO IS REQUIRED TO DECIDE THE OBJECTIONS RAISED BY THE ASSESSEE AGAINST THE NOTICE ISSUED U/S 147/148 OF THE INCOME TAX ACT, 1961 BY PASSING A SPEAKING ORDER BEFORE PASSING AN ASSESSMENT ORDER AND IF THE AO CONSI DERS IT APPROPRIATE TO REJECT THOSE OBJECTIONS, HE SHOULD REJECT THE SAME BY PASSING A SPEAKING ORDER AND THAT TOO BEFORE PASSING THE FINAL ORDER AND NOT SIMULTANEOUSLY. SIMILAR VIEW WAS ALSO TAKEN BY THE OTHER HIGH COURTS IN THE CASES SUPRA RELIED UPON BY THE LD. AR FOR THE ASSESSEE AS DETAILED ABOVE BY THE HEREINABOVE IN THIS ORDER. 14.1 THE RATIO OF THESE DECISIONS FULLY APPLIES TO THE FACTS AND LEGAL ISSUE UNDER CONSIDERATION BEFORE US AND HENCE RESPECTFULLY FOLLOWING THESE DECISIONS (SUPRA) AND THE DEC ISION OF CALCUTTA HIGH COURT AND GUJARAT HIGH COURT (SUPRA) ALSO IT IS HELD THAT THE FRAMING OF THE REASSESSMENT ORDER BY THE AO WITHOUT DISPOSING OFF THE OBJECTIONS RAISED BY THE ASSESSEE AGAINST ISSUANCE OF NOTICE U/S 147/148 OF THE INCOME TAX ACT, 1961 IS AGAINST THE LAW LAID DOWN BY THE APEX COURT IN ITS DECISION IN GNK DRIVESHAFTS (INDIA) LTD. (SUPRA) AND SO THE RE ASSESSMENT ORDER PASSED BY THE AO U/S147/148 IS REQUIRED TO BE SET ASIDE. ACCORDINGLY, WE SET ASIDE THE ASSESSMENT ORDER PASSED BY THE AO U/ S 147/148 AND RESTORE THE MATTER TO THE FILE OF AO TO FIRST DISPOSE OFF THE WRITTEN OBJECTIONS FILED BY THE ASSESSEE BEFORE HIM IN RESPONSE TO THE NOTICE ISSUED U/S 148 OF INCOME TAX ACT,1961 AND THEREAFTER IN CASE HE REJECTS THE OBJECTIONS OF THE ASSESSEE THE AO SHOULD PASS A SPEAKING ORDER AND IN CASE HE CONSIDERS IT ITA NO. 4332/DEL/2010 3 APPROPRIATE THEREAFTER, HE MAY CONSIDER THE ISSUE AFRESH AS TO WHETHER THE CAPITAL GAIN DECLARED BY THE ASSESSEE IS TO BE TREATED AS SHORT - TERM CAPITAL GAIN FOR THE PURPOSE OF ASSESSMENT. 1 4. THEREAFTER, THE ASSESSING OFFICER PASSED A FRESH ASSESSMENT ORDER UNDER SE CTION 254 READ WITH SECTION 147/143(3) ON 08.10.2009. IN THIS ASSESSMENT ORDER, THE ASSESSING OFFICER RECORDED AS FOLLOWS: THE OBJECTION RAISED AGAINST THE REOPENING OF ASSESSME NT HAS NOT BEEN FOUND CORRECT AND THE SAME HAVE BEEN DISPOSED OF F VIDE ORDER DATED 07.10.2009. IT IS CLEAR FROM THE ABOVE THAT THE A.O. DISPOSED OFF THE OBJECTION RAISED ON 07.10.2009 AND THEREAFTER PASSED THE ASSESSMENT ORDER ON 08.10.2009 I.E. THE NEXT DAY. 5. ON APPEAL, THE FIRST APPELLATE AUTHORITY VIDE HIS ORDER DATED 01.07.2010 DISMISSED THE APPEAL OF THE ASSESSEE. 6. FURTHER AGGRIEVED , THE ASSESSEE IS BEFORE US ON THE FOLLOWING GROUNDS : - 1. ON THE FACTS AND CIRCUMSTANCES, THE LEARNED CIT(APPEALS) HAS ERRED IN NOT SETTING ASIDE THE ASSESSMENT AS THE ASSESSING OFFICER FAILED TO GIVE SUFFICIENT TIME TO THE ASSESSEE TO TEHWRIT PETITION IN THE HIGH COURT AGAINST THE DISPOSAL OF THE OBJECTION RAISED IN COMPLIANCE OF THE HONBLE SUPREME COURT DECISION IN THE CASE OF G.K.N. DRIVESHAFTS (INDIA) LTD. VS. INCOME - TAX OFFICERS & OTHERS. 259 ITR 19(SC). 2. WITHOUT PREJUDICE TO OUR CONTENTIONS IN GROUNDS OF APPEAL 1 ABOVE. (A) ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED CIT(APPEALS) LEGALLY ERRED IN SUS TAINING ACTION OF THE ASSESSING OFFICER U/S 147 OF THE INCOME - TAX ACT, 1961 DESPITE THE FACT THAT THE REASONS RECORDED BY THE ASSESSING OFFICER ARE BASED ON INCORRECT FACTS AND NOT SUPPORTED BY ANY EVIDENCE. ITA NO. 4332/DEL/2010 4 (B) ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED CIT(APPEALS) LEGALLY ERRED IN UPHOLDING RE - OPENING OF THE ASSESSMENT AND VALIDITY OF THE PROCEEDINGS U/S 147 ON IRRELEVANT CONSIDERATIONS AND ON CONJECTURES AND SURMISES, WHEN THERE IS NO FAILURE ON THE PART OF THE ASSESSEE IN DISCLOSING ALL M ATERIAL FACTS. (C) ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED CIT(APPEALS) LEGALLY ERRED IN SUSTAINING THE CAPITAL GAIN AMOUNTING TO RS.47,90,000/ - AS A SHORT TERM GAIN BY THE ASSESSING OFFICER AS AGAINST THE ASSESSEES CLAIM THAT SAME IS TAXA BLE AS LONG TERM CAPITAL GAIN. (D) ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED CIT(APPEALS) LEGALLY ERRED IN UPHOLDING THAT THE DEED OF SETTLEMENT BETWEEN THE APPELLANT COMPANY AND M/S GOLDEN GREEN GOLD AND RESORTS LTD IS DATED 07.09.1996 WHERE AS THE SAME IS DATED 08.02.1997 WITHOUT BRINGING ANY MATERIAL ON RECORD. 3 (E) ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED CIT(APPEALS) LEGALLY ERRED IN CONSIDERING THE DATE OF MOU AS 18.02.1994 WHILE THE SAME IS 15.02.1994. 7 . LD. COUNSEL F OR THE ASSESSEE, SHRI S.K. KHANDARI ARGUED ONLY GROUND NO.1 BEFORE THE TRIBUNAL . HIS CONTENTION IS THAT THE ASSESSING OFFICER REJECTED THE OBJECTIONS RAISED BY THE ASSESSEE AGAINST REOPENING OF THE ASSESSMENTS ON 07.10.200 9 AND THEREAFTER, ON THE NEXT DAY PASSED AN ORDER UNDER SECTION 254 R.W.S.143(3) ON 08.10.2009 AND HENCE DENIED AN OPPORTUNITY TO THE ASSESSEE TO CHALLENGE THE ORDER OF THE A.O. REJECTING THE OBJECTIONS RAISED AGAINST REOPENING , BY WAY OF A WRIT PETITION BEFORE THE HONBLE HIGH COURT. 7. IT WAS ARGUED THAT THE ASSESSEE MUST BE GIVEN REASONABLE TIME TO FILE A WRIT PETITION AGAINST THE ORDER DISP OSING THE OBJECTION BY THE A.O. AND NOT GRANTING THE SAME RENDERS THE ORDER OF THE ASSESSMENT NULL AND VOID. ITA NO. 4332/DEL/2010 5 8. IN SUPPORT OF THIS CONTENTION, LD. COUNSEL DREW THE ATTENTION OF THE BENCH TO THE ORDER OF THE TRIBUNAL IN THE FIRST ROUND OF APPELLATE PROCEEDINGS , WHEREIN THE ASSESSING OFFICER WAS DIRECTED TO PASS A SPEAKING ORDER ON THE OBJECTION RAISED BY THE ASSESSEE ON REOPENING, BEFORE PASSING THE F INAL ORDER AND NOT SIMULTANEOUSLY. HE ARGUED THAT PASSING OF ASSESSMENT ORDER ON THE NEXT DAY OF DISPOSING OFF THE OBJECTION RAISED BY THE ASSESSEE ON REOPENING IS AGAINST THE DIRECTION OF THE ITAT. RELIANCE WAS PLACED IN THE CASE OF ASIAN PAINTS LTD. VS. DEPUTY COMMISSIONER OF INCOME - TAX AND ANOTHER, [2008] 296 ITR 90. 9. LD. DEPARTMENTAL REPRESENTATIVE , MR. SAMEER SHARMA, ON THE OTHER HAND SUBMITTED THAT THE ASSESSEE HA S A REMEDY BY WAY OF DISPUTING THE FINDINGS OF THE ASSESSING OFFICER , ON THE OBJECTIONS FILED BY THE ASSESSEE ON REOPENING, WHEN T HE ASSESSEE FILED ITS FIRST APPEAL BEFORE LD. CIT(A). HE ARGUED THAT THE ASSESSING OFFICER DID PASS SPEAKING ORDER REJECTING THE OBJECTIONS RAISED BY THE ASSESSEE ON THE ISSUE OF REOPENING AND THE ASSESSMENT ORDER WAS PASSED ON THE NEXT DAY AND HENCE NOT SIMULTANEOUSLY. HE ARGUED THAT NOTHING PREVENTED THE ASSESSEE FROM FILING A WRIT PETITION OR DISPUTING THE ISSUE ON MERIT S , BEFORE THE LD. FIRST APPELLATE AUTHORITY OR BEFORE THE TRIBUNAL. HE SUBMITTED THAT THIS WA S NOT DONE BY THE ASSESSEE AND HENCE THE ARGUMENT THAT THE REOPENING IS BAD IN LAW IS DEVOID OF MERIT. ITA NO. 4332/DEL/2010 6 10. ON THE QUERY FROM THE BENCH MR. S.K. KHANDARI, LD. COUNSEL FOR THE ASSESSEE DID NOT ARGUE ANY OTHER GROUND RAISED BY THE ASSESSEE. HE REPEATED HIS CO NTENTION THAT THE REASSESSMENT SHOULD BE HELD AS BAD IN LAW FOR THE REASON THAT THE ASSESSING OFFICER HAD NOT GIVEN SUFFICIENT TIME TO THE ASSESSEE, TO CHALLENGE THE REJECTION OF THE OBJECTIONS AGAINST REOPENING BY WAY OF A WRIT BEFORE THE HONBLE HIGH COU RT. HENCE, NONE OF THE OTHER GROUNDS ARE PERUSED BY THE ASSESSEE DURING THE COURSE OF THIS HEARING . 11. AFTER CAREFULLY CONSIDERING THE RIVAL SUBMISSIONS, WE ARE UNABLE TO PERSUADE OURSELVES TO THE PROPOSITION CANVASSED BY THE LD. COUNSEL FOR THE ASSESSEE . THE ASSESSEE HAS STATUTORY REMEDY PROVIDED UNDER THE ACT BY WAY OF APPEAL TO THE CIT(A) AND FURTHER APPEAL TO THE ITAT. THE REASONS GIVEN BY THE ASSESSING OFFICER FOR REJECTING THE OBJECTIONS RAISED BY THE ASSESSEE TO THE RE OPENING OF THE ASSESSMENT CAN BE CHALLENGED IN THESE APPEALS. SIMPLY BECAUSE THE ASSESSEE HAS RIGHT TO INVOKE THE JURISDICTION OF THE HONBLE HIGH COURT UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, IT DOES NOT FOLLOW THAT THE ASSESSING OFFICER HAS TO NECESSARILY GIVEN TIME TO THE AS SESSEE TO EXHAUST THE POSSIBLE REMEDY . THE ASSESSEE HAS NOT FILED A WRIT AGAINST THE SAID ORDER TILL DATE. T HUS , THE SUBMISSIONS OF LD. COUNSEL FOR THE ASSESSEE IS DEVOID OF MERIT. 12. WHILE COMING TO THIS CONCLUSION, WE DRAW STRENGTH FROM THE JUDGMENT OF THE HONBLE MADRAS HIGH COURT DATED 04.07.2004 IN A PPEAL NO. 347 TO 349 OF ITA NO. 4332/DEL/2010 7 2014 AND OTHERS IN THE CASE OF KALANITHI MARAN. WHEREIN AFTER CONSIDERING VARIOUS JUDGMENTS AT PARAS 20,32 AND 33 WHICH READS AS UNDER: 20. THE SUPREME COURT DID NOT FIND ANY JUS TIFIABLE REASON TO INTERFERE WITH THE ORDER PASSED BY THE DIVISION BENCH OF THE DELHI HIGH COURT. THE REMAINING PART OF THE ORDER WAS MADE BY WAY OF A CLARIFICATION. ONCE A NOTICE WAS ISSUED UNDER SECTION 148, THE ASSESSEE WILL HAVE TO FILE THE RETURN. IF HE DESIRES SO, HE CAN SEEK FOR REASONS FOR ISSUING NOTICE. THE ASSESSING OFFICER IS BOUND TO FURNISH THE REASONS WITHIN A REASONABLE TIME. THEREAFTER, THE ASSESSEE IS ENTITLED TO FILE THE OBJECTIONS OVER WHICH THE ASSESSING OFFICER HAS TO PASS A SPEAKING O RDER. IN THE SAID CASE, AS REASONS WERE MADE KNOWN, THE ASSESSING OFFICER WAS DIRECTED TO DISPOSE OF THE OBJECTIONS, IF FILED BY PASSING A SPEAKING ORDER BEFORE PROCEEDING WITH THE ASSESSMENT. SINCE THE ASSESSEE HAS ALREADY FILED APPEALS AGAINST THE ORDER S OF ASSESSMENT FOR SOME OF THE YEARS, THE APPELLATE AUTHORITY WAS DIRECTED TO DISPOSE OF THE SAME. THE SUPREME COURT ADAPTED A NOVEL METHOD TO MAKE WAY FOR THE STATUTORY AUTHORITIES TO DEAL WITH THE ADJUDICATION COVERING ASSESSMENTS. IN OTHER WORDS, IN CL EAR TERMS, THE SUPREME COURT HAS INDICATED THAT AN ASSESSEE IS NOT REQUIRED TO RUN TO THE COURT BEFORE THE PASSING OF THE ASSESSMENT ORDER BY CHALLENGING A NOTICE ISSUED UNDER SECTION 148 OF THE ACT. HOWEVER, IN ORDER TO PROVIDE AN ELEMENT OF FAIRNESS IN T HE PROCESS OF ADJUDICATION AND CREATE AN ATMOSPHERE OF TRANSPARENCY, A MECHANISM, WHICH WAS NOT FOUND IN THE STATUTE WAS EVOLVED BY ASKING THE ASSESSING OFFICER TO PASS A REASONED ORDER. IT IS ONLY A PART OF THE PROCEDURAL LAW. SUCH AN ORDER IS ONLY A PREL IMINARY ORDER, WHICH CAN ONLY BE SAID TO BE AN EXPANSION OF THE REASONS WHICH ARE SUPPOSED TO BE ASSIGNED UNDER SECTION 148(2) OF THE ACT. IT NEITHER CREATES A RIGHT NOR TAKES AWAY THE ONE ACCRUED. IT IS NOT AN ADJUDICATION IN THE STRICT SENSE OF THE TERM. IT IS ONLY MEANT FOR THE PURPOSE OF UNDERSTANDING THE BASIS OF THE NOTICE. THEREFORE, THE DECISION HAS TO BE UNDERSTOOD TO MEAN THAT A PRE - ADJUDICATION PROCEEDINGS NOT DECIDING THE ISSUES SHALL NOT BE PUT INTO CHALLENGE WHILE EXERCISING THE DISCRETIONARY POWER UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, WHICH IN THE PROCESS, TAKES AWAY THE RIGHT OF THE ASSESSING OFFICER TO PROCEED FURTHER. THEREFORE, THE ORDER ITA NO. 4332/DEL/2010 8 PASSED, AS DIRECTED BY THE SUPREME COURT, CANNOT BE TERMED AS A SUBSTITUTE TO THE ASSESSMENT ORDER. TO PUT IT DIFFERENTLY, IT DOES NOT TAKE AWAY THE POWER OF THE ASSESSING OFFICER TO DECIDE THE ISSUE ON THE PLEA OF THE ASSESSEE OR ON A CONSIDERATION OF THE RECORDS. IT IS TO BE REMEMBERED THAT THE ASSESSING OFFICER WAS DIRECTED TO PASS ORDERS ONLY ON THE OBJECTIONS GIVEN BY THE ASSESSEE. THE FURTHER FACT THAT SUCH AN ORDER IS REQUIRED TO BE PASSED BEFORE PROCEEDING WITH THE ASSESSMENT WOULD MAKE THE SAID POSITION CLEAR. FURTHERMORE, IF THE ORDER ON THE OBJECTIONS CAN BE ENTERTAINED, THEN THE SUPREME COURT WOULD NOT HAVE DIRECTED THE APPEALS TO BE DISPOSED OF BY THE APPELLATE AUTHORITY INSTEAD OF SETTING THEM ASIDE. THIS ALSO INDICATES THAT THE ASSESSEE COULD RAISE ALL THE PLEAS INCLUDING THOSE CONSIDERED AGAINST HIM BY THE ASSESSING OFFICER WHILE PAS SING ORDERS ON HIS OBJECTIONS. HENCE, SUCH A PRELIMINARY ORDER, WHICH DOES NOT HAVE A STATUTORY FLAVOUR NOT DECIDING THE DISPUTE BETWEEN THE PARTIES, CANNOT BE CHALLENGED BY INVOKING THE EXTRAORDINARY JURISDICTION BEFORE US. THE SUPREME COURT MERELY PROVID ED SAFEGUARDS TO THE ASSESSEE AT THE PRE - ADJUDICATIVE STAGE. THE DECISION HAS BEEN GIVEN TO MAKE SURE THAT THE ASSESSING OFFICER COMPLIES SECTION 148(2) IN LETTER AND SPIRIT. THERE IS NO CERTAINTY IN THE ORDER PASSED BY THE ASSESSING OFFICER. IF THE ORDER PASSED IS SET ASIDE, IT WOULD ONLY MEAN THE NOTICE ISSUED UNDER SECTION 148 IS LIABLE TO BE INTERFERED WITH. THE OBJECT OF THE DECISION OF THE SUPREME COURT IS NOT ONLY TO AVOID INTERFERENCE BY THE COURTS BUT NOT TO GIVE WAY FOR IT. ANY OTHER INTERPRETATIO N WOULD MAKE THE ENTIRE REMEDIAL MECHANISM PROVIDED UNDER THE ACT AS REDUNDANT. 32. LEARNED COUNSELS APPEARING FOR THE PETITIONERS SUBMITTED THAT THE OBJECTIONS RAISED HAVE NOT BEEN CONSIDERED PROPERLY BY THE ASSESSING OFFICER. IT IS ALSO SUBMITTED THAT WH EN A SPEAKING ORDER IS REQUIRED TO BE PASSED, THE SAME IS AMENABLE TO CHALLENGE. WE ARE NOT ABLE TO COUNTENANCE THE SAID ARGUMENT. WE HAVE ALREADY HELD THAT THE ORDER PASSED ON A CONSIDERATION OF THE OBJECTIONS RAISED CANNOT BE TERMED AS THE ORDER HAVING C IVIL CONSEQUENCES. THE ASSESSING OFFICER IS NOT REQUIRED TO CONSIDER THE OBJECTIONS IN DETAIL. ON THE CONTRARY, HE IS REQUIRED TO INDICATE THE BASIS FOR HIS RE - OPENING THE ASSESSMENT. WHEN UNDER SECTION 147 THE ASSESSING OFFICER CAN EVEN ASSESS ANY OTHER I NCOME CHARGEABLE TO TAX, WHICH HAS ESCAPED ASSESSMENT, WHICH COMES TO HIS NOTICE SUBSEQUENTLY DURING THE COURSE OF THE PROCEEDING, THE POWER BEING WIDE, IT CANNOT ITA NO. 4332/DEL/2010 9 BE CHALLENGED ON THE GROUND OF IMPROPER OR INADEQUATE CONSIDERATION OF OBJECTIONS. IN ANY CAS E, THE CONCLUSION ARRIVED AT CAN ALSO BE CHALLENGED AFTER THE ASSESSMENT IS CONCLUDED. THERE IS NO BAR IN LAW FOR THE ASSESSEE TO RAISE HIS CONTENTIONS BEFORE THE ASSESSING OFFICER BASED UPON NEW MATERIALS. THE ASSESSEE CAN ALSO RAISE HIS CONTENTIONS INCLU DING THOSE GROUNDS URGED BEFORE THE ASSESSING OFFICER AT THE TIME OF PASSING ORDERS ON THEM. THEREFORE, WE ARE OF THE VIEW THAT THE ORDER PASSED ON THE OBJECTIONS RAISED BY THE ASSESSEE WOULD NOT PREVENT THE ASSESSING OFFICER FROM EXERCISING HIS POWER ON M ERITS WHILE PASSING THE ASSESSMENT ORDER. 33. LEARNED COUNSELS APPEARING FOR THE PETITIONERS SUBMITTED THAT THE ASSESSING OFFICER IS NOT REQUIRED TO INDICATE THE REASONS IN THE ASSESSMENT ORDER AND HE HAS TO PASS A SEPARATE ORDER ON THE NEW OBJECTIONS RA ISED. THEREFORE, UNDER THOSE CIRCUMSTANCES, THE ISSUES RAISED WILL HAVE TO BE DECIDED IN THE WRIT PETITIONS BY THIS COURT ALONE. THE SAID SUBMISSION MADE BY THE LEARNED COUNSEL FOR THE PETITIONERS CANNOT BE ACCEPTED. PASSING A SEPARATE ORDER GIVING REASONS OR INCORPORATING IT IN THE ASSESSMENT ORDER ITSELF ON THE FURTHER OBJECTIONS OF THE ASSESSEE IS PROCEDURAL IN NATURE. IN ANY CASE, THE SAME WOULD NOT GIVE ANY RIGHT TO THE ASSESSEE TO APPROACH THIS COURT. HOWEVER, WE WOULD ONLY LIKE TO CLARIFY THAT IF ANY NEW CONTENTIONS/OBJECTIONS ARE RAISED BY THE ASSESSEE CONCERNED, THE ASSESSING OFFICER CONCERNED WILL HAVE TO CONSIDER THE SAME AND INCORPORATE IT EITHER IN THE ASSESSMENT ORDER OR BY PASSING A SEPARATE ORDER. 1 3 . THE JUDGMENT OF THE HONBLE BOMBAY H IGH COURT IN THE CASE OF ASIAN PAINTS (SUPRA) IS NOT APPLICABLE TO THE FACTS OF THIS CASE AS IN THAT CASE THE ASSESSEE APPROACHED THE HIGH COURT FOR TIME AND THIS WAS GRANTED. IN THE CASE ON HAND THE ASSESSEE HAS NOT FILED A WRIT TILL DATE. 14. IN VIEW OF THE ABOVE DISCUSSION, WE REJECT THE PLEA OF THE ASSESSEE TO QUASH THE ASSESSMENT FOR THE REASON THAT THE AO HAS NOT GIVEN THE ASSESSEE SUFFICIENT ITA NO. 4332/DEL/2010 10 TIME TO CHALLENGE THE ORDER REJECTING THE OBJECTIONS RAISED, BY WAY OF A WRIT PETITION. IN THE RESULT, GROUND NO.1 OF THE ASSESSEE IS DISMISSED. 15. AS THE ASSESSEE DID NOT ARGUE GROUND NO.2, WE DISMISS THE SAME FOR NON - PROSECUTION. 1 6 . IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISSED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 22 .0 8 .2014 SD/ - SD/ - ( DIVA SINGH ) ( J.S. REDDY ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED 22 .0 8 .2014 A KS* COPY OF THE ORDER FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT (AP PEALS) CONCERNED 4. CIT CONCERNED 5. D.R., ITAT, ASSISTANT REGISTRAR