JASMIN K AJMERA (HUF), MUMBAI V. DCIT CC 2 (2), MUMBAI

ITA 7368/MUM/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 4108 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 02-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BRAJENDRA KUMAR
• Keywords: Reopening of assessment; Transfer pricing; Search and seizure; Loose papers; Opportunity of being heard; Principle of natural justice; Period of limitation; Question of law; Procedural lapse; Retraction; Revised return; Reassessment proceedings; Set aside
• Section: 143(3); 142(1); 153A; 201; 143(2); 48; 72; 13; 153; 22; 147; 263; 12; 92

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (VIRTUAL COURT) MUMBAI BENCH A , MUMBAI BEFORE SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER AND SHRI MANOJ KUMAR AGGARWAL, HON'BLE ACCOUNTANT MEMBER ITA NO S . 7370 & 7371/MUM/2019 (A.Y S . 2011 - 12 & 201 2 - 13) KISHORE H. AJMERA (HUF) 4 TH FLOOR, AJMERA HOUSE PAHAKWADI, L.T.MARG MUMBAI - 400002 PAN: AACHK7675R V. DCIT CC 2(2) ROOM NO. 806, 8 TH FLOOR OLD CGO BUILDING PRATISTHA BHAVAN M.K. ROAD, MUMBAI 400 020 (APPELLANT) (RESPONDENT) ITA NO. 7366/MUM/2019 (A.Y. 201 2 - 13) JITEN K. AJMERA (HUF) 4 TH FLOOR, AJMERA HOUSE PAHAKWADI, L.T.MARG MUMBAI - 400002 PAN: AACHJ7449E V. DCIT CC 2(2) ROOM NO. 806, 8 TH FLOOR OLD CGO BUILDING PRATISTHA BHAVAN M.K. ROAD, MUMBAI 400 020 (APPELLANT) (RESPONDENT) ITA NO S . 7367 & 7 368/MUM/2019 (A.Y S . 2011 - 12 & 201 2 - 13) JASMIN K. AJMERA 4 TH FLOOR, AJMERA HOUSE PAHAKWADI, L.T.MARG MUMBAI - 400002 PAN: AABHJ9049K V. DCIT CC 2(2) ROOM NO. 806, 8 TH FLOOR OLD CGO BUILDING PRATISTHA BHAVAN M.K. ROAD, MUMBAI 400 020 (APPELLANT) (R ESPONDENT) 2 ITA NOS. 7366, 7367, 7368, 7370 & 7371/MUM/2019 KISHORE H. AJMERA (HUF) & OTHERS ASSESSEE BY : SHRI DINKLE HARIYA DEPARTMENT BY SHRI BRAJENDRA KUMAR DATE OF HEARING : 02.09.2021 DATE OF PRONOUNCEMENT : 06 .10.2021 O R D E R PER C. N. PRASAD (JM) 1. ALL T HESE APPEALS ARE FILED BY DIFFERENT AS SESSEE S OF SAME GROUP / FAMILY AGAINST DIFFERENT ORDER S OF THE LEARNED COMMI SSIONER OF INCOME TAX (APPEALS) 48, MUMBAI [HEREINAFTER IN SHORT LD.CIT(A)] DATED 30.08.2019. 2. SINCE, IN ALL THESE APPEALS ASSESSEES RAISED THE IDENTICAL GROUNDS AND FOR THE SAKE OF CONVENIENCE ALL THE APPEALS ARE HEARD TOGETHER AN D COMMON ORDER IS ORDER PASSED. 3. FIRST WE TAKE UP THE APPEAL IN ITA.NO. 7370/MUM/2019 FOR THE A.Y.2011 - 12 IN THE CASE OF KISHORE H. AJMERA (HUF). ASSESSEE HAS RAISED FOLLOWING GROUNDS IN ITS APPEAL: - 1. NATURAL JUSTICE 1.1 THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) - 48 , MUMBAI ['ID. CIT (A)'] ERRED I N NOT GRANTING PROPER, SUFFICIENT AND ADEQUATE OPPORTUNITY OF BEING HEARD TO THE APPELLANT WHILE FRAMING THE APPELLATE ORDER. 3 ITA NOS. 7366, 7367, 7368, 7370 & 7371/MUM/2019 KISHORE H. AJMERA (HUF) & OTHERS 1.2 IT IS SUBMITTED TH AT, IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE, AND IN LAW, THE APPELLATE ORDER SO FRAMED BE HELD AS BAD AND ILLEGAL, AS: (I) THE SAME IS FRAMED IN BREACH OF THE PRINCIPLES OF NATURAL JUSTICE; AND (II) THE SAME IS PASSED WITHOUT APPLICATION OF MIND TO THE FACTS AND THE SUBMISSIONS BROUGHT ON RECORD BY THE APPELLANT. WITHOUT PREJUDICE TO THE ABOVE 2. REASSESSMENT 2.1 THE LD. CIT (A) ERRED IN CONFIRMING THE ACTION OF THE A.O. IN INITIATING REASSESSMENT PROCEEDINGS AND FRAMING THE ASSESSMENT OF THE APPELL ANT BY INVOKING THE PROVISIONS OF SECTION 147 R.W.S. 148 OF THE INCOME TAX ACT, 1961 ['THE ACT']. 2.2 WHILE DOING SO, THE LD. CIT (A) FAILED TO APPRECIATE THAT: (I) THE CASE OF THE APPELLANT DID NOT FALL WITHIN THE PARAMETERS LAID DOWN BY SECTION 147 R.W.S . 148 OF THE ACT; (II) THE NECESSARY PRECONDITIONS FOR INITIATING AND COMPLETION THEREOF WERE NOT SATISFIED. 2.3 IT IS SUBMITTED THAT IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE, AND IN LAW, THE REASSESSMENT FRAMED IS BAD, ILLEGAL AND VOID. WITHOUT FURT HER PREJUDICE TO THE ABOVE 3.1 THE LD. CIT (A) ERRED IN CONFIRMING THE ADDITION M ADE BY THE A.O. OF RS. 5,30,14,596 / - U/S. 68 OF THE ACT, ON ACCOUNT OF ALLEGED BOGUS / UNEXPLAINED LONG TERM CAPITAL GAIN. 3.2 WHI LE DOING SO, THE LD. CIT (A) ERR ED IN: (I) BAS ING HIS ACTION ON WRON G / ERRONEOUS FACTS. (II) BASING HIS ACTION ONLY ON SURM ISES, SUSPICION AND CONJECTURE; (III) TAKING INTO ACCOUNT IRRELEVANT AND EXTRANEOU S CONSIDERATIONS; AND (IV) IGNORING RELEVANT MATERIAL AND CONSIDERATIONS AS SUBMITTED BY THE APP ELLANT. 3.3 IT IS SUBMITTED THAT IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE, AND IN LAW, NO SUCH ADDITION WAS CALLED FOR. 3.4 WITHOUT PREJUDICE TO THE ABOVE, ASSUMING - BUT NOT ADMITTING - THAT SOME ADDITION WAS CALLED FOR, IT IS SUBMITTED THAT THE COM PUTATION OF THE ADDITION MADE BY THE A.O. IS ARBITRARY, EXCESSIVE AND NOT IN ACCORDANCE WITH THE LAW. 4 ITA NOS. 7366, 7367, 7368, 7370 & 7371/MUM/2019 KISHORE H. AJMERA (HUF) & OTHERS WITHOUT FURTHER PREJUDICE TO THE ABOVE 4.1 THE LD. CIT (A) ERRED IN CONFIRMING THE ADDITION MADE BY THE A.O. OF RS. 27,83,266/ - U/S. 69 OF THE ACT, ON ACCO UNT OF ALLEGED ESTIMATED UNEXPLAINED EXPENSES. 4.2 WHILE DOING SO, THE LD. CIT (A) ERRED IN: (I) BASING HIS ACTION ONLY ON SURM ISES, SUSPICION AND CONJECTURE; (II) TAKING INTO ACCOUNT IRRELEVANT AND EXTRANEOUS CONSIDERATIONS; AND (III) IGNORING RELEVANT MA TERIAL AND CONSIDERATIONS AS SUBMITTED BY THE APPELLANT. 4.3 IT IS SUBMITTED THAT IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE, AND IN LAW, NO SUCH ADDITION WAS CALLED FOR. 4.4. WITHOUT PREJUDICE TO THE ABOVE, ASSUMING - BUT NOT ADMITTING - THAT SOME ADD ITION WAS CALLED FOR, IT IS SUBMITTED THAT THE COMPUTATION OF THE ADDITION MADE BY THE A.O. IS ARBITRARY, EXCESSIVE AND NOT IN ACCORDANCE WITH THE LAW. 4. LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET SUBMITTED THAT THE REASSESSMENT ORDER PASSED BY THE ASSESSIN G OFFICER IS BAD, ILLEGAL AND WITHOUT JURISDICTION FOR THE REASON THAT THE ASSESSING OFFICER IGNORED THE MANDATORY REQUIREMENT OF DISPOSING OFF OBJECTIONS RAISED BY THE ASSESSEE FOR REOPENING THE ASSESSMENT U/S. 147 OF THE ACT. LD. COUNSEL FOR THE ASSESSE E REFERRING TO PARA NO . 4 OF THE RE - ASSESSMENT ORDER AT PAGE NO.11 , SUBMITTED THAT THE ASSESSING OFFICER STATED THAT ASSESSEE NEVER SUBMITTED ANY OBJECTIONS AND THEREFORE DISPOSING OFF THE OBJECTIONS DOES NOT ARISE IS CONTRARY TO RECORD. REFERRING TO PAGE NO S . 81 TO 92 OF THE PAPER BOOK LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT IN THE COURSE OF PROCEEDINGS BEFORE THE ASSESSING OFFICER ASSESSEE MADE ELABORATE SUBMISSIONS AND PRELIMINARY OBJECTIONS ON REOPENING OF ASSESSMENT AND 5 ITA NOS. 7366, 7367, 7368, 7370 & 7371/MUM/2019 KISHORE H. AJMERA (HUF) & OTHERS THESE OBJECTIONS WERE NEVER D ISPOSED OFF BY THE ASSESSING OFFICER BEFORE FRAMING THE ASSESSMENT, T HEREFORE, RENDERING THE ASSESSMENT ORDER BAD IN LAW. 5. LD. COUNSEL FOR THE ASSESSEE PLACED RELIANCE ON THE FOLLOWING DECISIONS: - (I) DCIT V. M/S. F IRST SOURCE SOLUTIONS LTD., IN ITA.NO. 3985 & 3986/MUM/2016 DATED 22.05.2019. (II) MAHARASHTRA STATE POWER GENERATION CO. LTD., V. ADDL. CIT IN ITA.NO. 2043/MUM/2011 DATED 31.07.2019. REFERRING TO THESE TWO DECISIONS LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT THE TRIBUNAL FOLLOWING THE DECISIONS OF THE HO N'BLE SUPREM E COURT IN THE CASE OF GKN DRIVESHAFTS (INDIA) LTD., V. ITO [259 ITR 19] AND THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF KSS PETRON PVT. LTD., V. ACIT IN ITA.NO. 224 OF 2014 DATED 03.10.2016 SET - ASIDE THE ASSESSMENT OR DER AS THERE WAS NO SEPARATE ORDER PASSED BY THE ASSESSING OFFICER DEALING WITH THE PRELIMINARY OBJECTIONS FILED BY THE ASSESSEE IN REOPENING THE ASSESSMENT. 6. LD. COUNSEL FOR THE ASSESSEE ALSO PLACED RELIANCE ON THE DECISION OF THE HON'BLE BOM BAY HIGH COURT AT GOA BENCH IN THE CASE OF FOMENTO RESORTS & HOTELS LTD., V. ACIT IN TAX APPEAL NO. 63 OF 2007 DATED 6 ITA NOS. 7366, 7367, 7368, 7370 & 7371/MUM/2019 KISHORE H. AJMERA (HUF) & OTHERS 30.08.2019 AND SUBMITTED THAT IT HAS BEEN HELD BY THE HON'BLE BOMBAY HIGH COURT THAT T HE ASSESSING OFFICER HAS TO PASS A SEPARATE ORDER DISPOSING OFF THE PRELIMINARY OBJECTIONS AND HE CANNOT DISPOSE OFF THE OBJECTIONS WHILE PASSING THE ASSESSMENT ORDER ITSELF . 7. LD. COUNSEL FOR THE ASSESSEE ALSO PLACED RELIANCE ON THE FOLLOWING DECISIONS IN SUPPORT OF HER CONTENTIONS: - (I) BAYER MATERIALS SCIENCE (P.) LTD., V. DCIT [382 ITR 333 ( BOM . )] (II) VISHWANTH ENGINEERS V. ACIT [352 ITR 549 (GUJ.)] (III) GENERAL MOTORS INDIA P. LTD. V. DCIT [354 ITR 244 (GUJ.) (IV) SMT. KAMLESH SHARMA V. ITO [287 ITR 337 (DEL.)] (V) HOTEL REGAL INTERNATIONAL & ANR.V. ITO & ANR. [37 DTR (CAL) 360] (VI) BHARAT JAYA NTILAL PATEL V. UOI [378 ITR 596 (BOM)] (VII) DYNACRAFT AIR CONTROLS V. SMT. SNEHA JOSHI & ORS. [358 ITR 102 (BOM). (VIII) ANKITA A. CHOKSEY V. INCOME TAX OFFICER IN W.P. NO. 3344 OF 2018 DATED 10.01.2019. 8. LD. COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT IDENTICAL I SSUE HAS COME UP IN THE CASE OF JITEN K. AJMERA (HUF) V . DCIT IN ITA.NO. 4999/MUM/2018 DATED 08.12.2020 AND TRIBUNAL FOLLOWING THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF GKN DRIVESHAFTS (INDIA) LTD., V. ITO [259 ITR 19] A ND DECISION OF THE HO N'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF FOMENTO RESORTS & HOTELS LTD., V. ACIT IN TAX APPEAL NO. 63 OF 2007 DATED 30.08.2019, QUASHED THE RE - ASSESSMENT ORDER PASSED U/S.143(3) R.W.S. 147 OF THE ACT IN THE ABSENCE OF SEPARATE SPEAKING ORDER DISPOSING OF THE PRELIMINARY OBJECTIONS RAISED BY THE ASSESSEE IN REOPENING THE ASSESSMENT . 7 ITA NOS. 7366, 7367, 7368, 7370 & 7371/MUM/2019 KISHORE H. AJMERA (HUF) & OTHERS 9. LD. DR VEHEMENTLY SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. LD. DR REFERRING TO PARA NO. 3 AND 4 AT PAGE NO. 10 OF THE ASSESSMENT ORDER PASSED U/S. 143(3) R.W.S. 147 OF THE ACT ON 29.09.2016 IN THE CASE OF M/S. JITEN K. AJMERA (HUF) FOR THE A.Y. 2012 - 13, SUBMITTED THAT THE ASSESSING OFFICER HAS GIVEN THE CHRONOLOGY OF EVENTS AS UNDER: - 'THEREFORE PROCEEDINGS U/S 147 OF THE INCOME TAX ACT, 1961 WAS INITIATED BY ISSUE OF NOTICE U/S 148 OF THE I.T.ACT 1961 DATED 25.02.2016 WITH PRIOR APPROVAL OF THE ADDL.CIT CENTRAL RANGE - 2, MUMBAI. THE ASSESSEE FILED LETTER DATED 30 TH MARCH 2016 STATING THAT THE RETURN OF INCOME FILED ORIGINALLY MAY BE TREATED AS RETURN OF INCOME IN RESPON SE TO NOTICE U/S 148. 4. THEREAFTER NOTICE U/S 143(2) AND 142(1) R.W.S 147 OF THE L.T.ACT, 1961 WAS ISSUED TIME TO TIME. THE ASSESSEE SUBMITTED ITS REPLY VIDE LETTER DATED 09.05.2016 AND 28.07.2016. THE ASSESSEE NEVER SUBMITTED ANY OBJECTIONS TO NOTICE U/S 148 OF THE I .T.ACT, 1961. THEREFORE, THE QUESTION OF DISPOSING OFF THE OBJECTI ONS TO NOTICE U/S 148 OF THE I. T.ACT, 1961 DOES NOT ARISE.' 10. LD.DR REFERRING TO PAGE NO. 4 SUBMITTED THAT THE ASSESSING OFFICER STATED IN THE ASSESSMENT ORDER THAT ASSESSEE NEVE R SUBMITTED ANY OBJECTIONS TO NOTICE U/S. 148 OF THE ACT. LD. DR FURTHER REFERRING TO PARA NO . 5.1.7 OF THE LD.CIT(A) ORDER AT PAGE NO. 14 SUBMITS THAT EVEN THE LD.CIT(A) STATED THAT IN CASE OF ASSESSEE THE PROCEEDINGS WERE FAIR AND JUST WHEREIN THE REPLI ES AND DETAILS OF THE ASSESSEE WERE DULY ATTEND ED TO AND CONSIDERED AND THE DETAILS WERE DULY PROVIDED TO THE ASSESSEE. REFERRING TO LD.CIT(A) ORDER , LD.DR SUBMITS THAT THE ASSESSMENT WAS COMPLETED ON 28.09.2016 WHICH IS WITHIN THE FAIR AND REASONABLE SHOR T PERIOD OF RECEIPT OF THE ASSESSEES LETTER DATED 28.07.2016 , T HEREFORE THE 8 ITA NOS. 7366, 7367, 7368, 7370 & 7371/MUM/2019 KISHORE H. AJMERA (HUF) & OTHERS LD.CIT(A) STATED THAT THERE IS NO ANOMALY IN THE ORDER OF THE ASSESSING OFFICER AND THERE IS NO VIOLATION OF LAW AS EXPOUNDED BY HON'BLE SUPREME COURT IN THE CASE OF GKN DRIVESHA FTS (INDIA) LTD., (SUPRA). 11. LD. DR FURTHER SUBMITTED BY WAY OF SYNOPSIS AS UNDER: - 5. EVEN ASSUMING THAT THE ASSESSEE HAS FILED LETTER DT: 28.07.2016 OBJECTING THE RE - OPENING, THERE IS UNDUE DELAY ON PART OF ASSESSEE IN FILING THAT OBJECTION. THE ASSES SEE FILED RETURN OF INCOME ON 30.03.3016 IN RESPONSE TO THE NOTICE ISSUED U/S 148 OF THE ACT. ON THE BASIS OF RETURN OF INCOME FILED, THE AO ISSUED NOTICE U/S 143(2) OF THE ACT ON 08.04.2016. AO ALSO PROVIDED THE REASONS FOR RE OPENING. VARIOUS DETAILS WER E CALLED FOR VIDE THIS NOTICE. THEREAFTER VIDE LETTER DATED 09.05.2016, ASSESSEE PROVIDE DETAILS WHICH WERE CALLED FOR BY THE AO. 6. THEREFORE, IT IS VERY FAIR AND REASONABLE TO PRESUME FROM THE CONDUCT OF THE ASSESEE THAT HE HAD NO OBJECTION TO THE RE ASS ESSMENT PROCEEDINGS AND HAD PROVIDE THE DETAILS TO THE AO IN THE ASSESSMENT PROCEEDINGS AND ACCORDINGLY, THE AO COMPLETED THE ASSESSMENT ON 28.09.2016. 7. HON 'BLE BOMBAY HIGH COURT ADJUDICATED THE WP NO 90 OF 2017 IN THE CASE OF MOHAMMEDALLY NOORBHOY BANDU KWALA TRUST VS. INCOME TAX OFFICER (EXEMPTION) 2(1) FILED ON THE ISSUE OF NON - DISPOSAL OF OBJECTIONS. THE FINDINGS OF THE HON'BLE HIGH COURT ARE UNDER: '11. THUS IN THE ABOVE FACTS, WE FIND THAT THE UNDUE DELAY ON THE PART OF THE PETITIONER IN OBJECTING TO THE REASONS, MADE IT IMPOSSIBLE IN THE PRESENT FACTS GIVE TIME TO THE PETITIONER IN ACCORD WITH THE DECISION OF THIS COURT BEFORE PASSING AN ASSESSMENT ORDER UNDER SECTION 143(3) OF THE ACT ON 28TH DECEMBER, 2016. THUS IN THESE FACTS, THE DECISION OF THIS COURT IN ASIAN PAINTS LTD. (SUPRA) AND ARONI COMMERCI AL LTD ( SUPRA) WOULD NOT APPLY (COP Y ENCLOSED) ANNEX - A 8. H ON'BLE MADRAS HIGH COURT IN THE CASE OF HOME FINDERS HOUSING LTD VS. INCOME TAX OFFICER, REPORTED IN (2018) 93 TAXMANN.COM 371 (MADRAS) DATED APRIL 25, 2018 HAS ALSO ADJUDICATED THE SIMILAR ISSUE IN FAVOUR OF REVENUE. (COPY ENCLOSED) - A NNEX B & C. 9. IN VIEW OF THE ABOVE FACTS, IT IS VERY CLEAR THAT THE AO HAD FOLLOWED THE PROCEDURE LAID DOWN IN THE ACT WHILE COMPLETING THE RE - ASSESSMENT PROCEE DINGS; HENCE GROUND RAISED BY THE APPELLANT HAS NO MERIT. 9 ITA NOS. 7366, 7367, 7368, 7370 & 7371/MUM/2019 KISHORE H. AJMERA (HUF) & OTHERS 12. IN THE REJOINDER LD. COUNSEL FOR THE ASSESSEE SUBMITTED AS UNDER: - 2.1 THE ARGUMENT OF THE LD. DR THAT THERE WAS UNDUE DELAY ON THE PART OF THE APPELLANTS IN FILING OF THE OBJECTIONS TO THE INITI ATION OF THE REASSESSMENT PROCEEDING AND, CONSEQUENTLY, THE NON - DISPOSAL OF THE OBJECTIONS OF THE APPELLANT BY TH E A.O. IS TO BE IGNORED, IS MIS - PLACED. THIS IS FOR THE FOLLOWING REASONS: (I) AS IS EVIDENT, THE REASONS FOR REOPENING PROVIDED B Y THE ASSES SING OFFICER ON 08 .04.2016, RUNNING INTO 8 PAGES, INVOLVED SUBSTANTIAL FACTUAL ASPECTS SEARCH AND SEIZURE AND. THAT TOO, AT A THIRD PARTY'S PLACE. IN ORDER TO SUBMIT ' DETAILED AND MEANINGFUL OBJECTIONS TO THE REASONS SO PROVIDED, IT INVOLVED SUBSTANTIAL D ATA / INFORMATION VERIFICATION, APART FROM GATHERING OF LOT OF DOCUMENTS & DETAILS. THIS, THEREFORE, INVOLVED AN ELABORATE AND LABORIOUS EXERCISE, CONSUMING SUBSTANTIAL TIME. THIS IS EVIDENT FROM THE FACT THAT THE APPELLANT FILED DETAILED EXHAUSTIVE OBJECT IONS RUNNING INTO 12 PAGES ON 28.07.2016, WHICH LETTER IS A PART OF THE PAPER BOOK ALREADY ON RECORD. (II) BESIDES, THE SEARCH AND SEIZURE OPERATIONS AT APPELLANTS' PLACE INVOLVED MORE THAN 15 FAMILY MEMBERS AND ENTITIES OF THE APPELLANTS, C ARRYING OUT OF THE SEARCH OPERA TIONS FOR MORE THAN 50 DAYS AND LEADING TO SEIZURE OF HUGE DOCUMENTS AND MATERIAL AT THE TIME OF THE SEARCH. THE FAMILY MEMBERS WERE ALREADY EMBROILED IN SERIOUS AND COMPLEX LITIGATIONS, RIGHT FROM THE DATE OF SEARCH, INCLUDING RETRACTIONS. MANY OF THE CASES WERE REOPENED U/S 153A AND, AS SUCH, THE ASSESSMENT / APPEAL FILING PROCEEDINGS IN SUCH CASES WERE ALREADY IN PROGRESS DURING THIS TIME. (III) IT SHOULD BE APPRECIATED THAT THE DETAILS SUBMITTED BY THE APPELLANTS ON 09.05.2016 WERE PURE LY BY WAY OF A PRELIMINARY LETTER INVOLVING ONLY BASIC DOCUMENTS AND DE TAILS. IN ANY CASE, THIS IN NO WAY CAN BE CONSIDERED AS CONCEDING TO THE INITIATION OF REASSESSMENT PROCEEDING BY THE APPELLANT. EVEN OTHERWISE, THERE IS NO SPECIFIC BAR IN OBJECTING T O REASSESSMENT PROCEEDING IF SOME BASIC / PRELIMINARY DETAIL IS FILED. IN ANY CASE, THERE CAN BE NO ASSUMPTION ABOUT THE ALLEGED INTENTION OF THE APPELLANTS NOT TO FILE OBJECTIONS AGAINST THE STARK PROOF OF ACTUALLY FILING THE OBJECTIONS, AS SOUGHT TO BE M ADE BY THE LD. DR IN PARA 6 OF THE BRIEF SYNOPSIS FILED. (IV) IN ANY CASE, WHEN THE APPELLANTS FILED THE OBJECTIONS ON 28.07.2016, THERE WAS SUFFICIENT TIME AVAILABLE OF FIVE MONTHS WITH THE ASSESSI NG OFFICER TO DISPOSE OF THE OB JECTIONS AND COMPLETE THE REASSESSMENT PROCEEDING, (V) IMPORTANTLY, THOUGH THE ASSESSMENT WAS GETTING TI ME BARRED ON 31.12.2016, THE AS SESSING OFFICER PASSED THE REASSESSMENT ORDER ON 29.09.2016. THUS, THOUGH THE AS SESSING OFFICER HAD SUFFICIENT TIME TO PASS THE ORDER DISPOSING OF THE OBJECTIONS AND THEN PROCEED AHEAD AND MAKE THE NECESSARY ENQUIRIES AND VERIFICATION DURING THE RE ASSESSMENT PROCEEDING, HE WENT AHEAD AND PASSED THE REASSESSMENT ORDER ON 29.09.2016. THEREFORE, THE DEPARTMENT 10 ITA NOS. 7366, 7367, 7368, 7370 & 7371/MUM/2019 KISHORE H. AJMERA (HUF) & OTHERS CANNOT FIND THE EXCUSE AND SHIFT THE BLAM E TO THE ALLEGED DELAY ON THE PART OF THE APPELLANTS. INTERESTING, THE LD. CIT (A) IN THE IMPUGNED ORDER HERSELF HAS CATEGORICALLY OBSERVED THAT ' ...IN ANY CASE THE ASSESSMENT WAS COMPLETED ON 29.09.2016, WHICH IS WITHIN A FAIR AND REASONABLE SHORT PE RIOD OF RECEIPT OF ASSESSES'S LETTER DATED 26.0 7.2016...' (VI) IN FACT, AFTER FILING OF THE OBJECTIONS BY THE APPELLANT ON 28.07.2016, NO NOTICE U/S 142(1) OF THE ACT WAS ISSUED BY THE ASSESSING OFFICER TO MAKE ANY FURTHER ENQUIRY / VERIFICATION ON MERITS OF THE CASE. THUS, IT WAS NO T A CASE WHERE THE ASSESSING OF FICER WAS WANTING TO MAKE ANY ENQUIRY / VERIFICATION BUT DUE TO SHORTAGE OF TIME COULD NOT DO SO. 2.2 NOW AS FAR AS THE LEGAL POSITION IS CONCERNED, THE RELIANCE PLACED BY THE LD. DR ON THE DECISION OF THE HON'BLE BOMBAY COURT IN THE CASE OF MOHAMMEDALLY NOORBHOY BANDUKWALA TRUST V. ITO (E) IS MISPLACED BECAUSE THE SAID DECISION IS CLEARLY DISTINGUISHABLE ON THE FACTS OF THE CASE. IN THIS CASE, THE OBJECTIONS WERE FILED BY THE PETITIONER THEREIN ON 19 .12.2016, WHICH WERE DISPOSED OFF BY THE ASSESSING OFFICER ON 22.12.2016 AND THE AS SESSMENT WAS GETTING TIME BARRED ON 31.12.2016 AND THUS, THE HIGH COURT HELD THAT THE UNDUE DELAY IN FILING OBJECTIONS MADE IT IMPOSSIBLE TO THE PETITIONER BEFORE PASSING T HE AS SESSMENT ORDER. IN FACT, AS IT APPEARS, THE COURT WAS MORE CONCERNED WITH THE CONDUCT OF T HE PETITIONER BEFORE THE HIGH COURT AS IS EVIDENT FROM PARA 5 - 8 OF THE ORDER. THE COURT FOUND WRONG AND ERRONEOUS AVERMENTS MADE BY THE PETITIONER THEREIN, WHIC H LED THE COURT TO PUT STRONG OBSERVATIONS: 'WE ARE OF THE VIEW THAT AS THE PETITIONER HAS NOT COME TO THIS COURT WITH CLEAN HANDS, THIS PETITION CANNOT BE ENTERTAINED.' IT WAS ONLY CONSIDERING THE AGE OF THE PETITIONER THAT THE COURT REFRAINED TO IMPOSE A NY COST. AS SUCH, THIS CASE IS BASED ON VERY PECULIAR FACTS OF THAT CASE. AS AGAINST THAT, IN THE PRESENT CASE, AS STATED ABOVE, THERE WAS SUFFICIENT TIME AVAILABLE OF FIVE MONTHS WITH THE ASSESSING OFFICER TO DISPOSE OF THE OBJECTIONS AND COMPLETE THE REA S SESSMENT PROCEEDING, WHICH MANDATORY REQUIREMENT WAS NOT FOLLOWED BY THE ASSESSING OFFICER. 2.3 WITH RESPECT TO RELIANCE BY THE LD. DR ON THE DECISION OF THE MADRAS HIGH COURT IN THE HOME FINDERS HOUSING LTD., THIS DECISION ALREADY HAS ALREADY BEEN DEALT WITH AND DISTIN GUISHED IN THE DETAILED LEGAL NOTE FILED ON 01.09.2021, APART FROM RELYING UPON VARIOUS OTHER DECISIONS, INCLUDING THAT OF THE HON'BLE BOMBAY HIGH COURT, IN SUPPORT OF THIS PROPOSITION. IT IS INTERESTING TO NOTE THAT VERY SAME MADRAS HIGH COURT ITSELF, SUBSEQUENT TO THE SUPREME COURT DECISION, HAS ACCEPTED THIS LEGAL POSITION IN FAVOUR OF THE ASSESSEE. 2.4 IT SHOULD BE APPRECIATED THAT SUCH LAPSE ON THE PART OF AN ASSESSING OFFICER, TO PROCEED FURTHER WITH THE REASSESSMENT PROCEEDING WITHO UT FIRST DISPOSING OF THE OBJECTIONS AS RAISED BY THE ASSESSEE, IS A VERY SERIOUS JURISDICTIONAL DEFECT / LAPSE, WHICH CANNOT BE CURED EVEN BY DISPOSING OF THE OBJECTIONS IN THE ASSESSMENT ORDER. THIS WELL - SETTLED LEGAL POSITION HAS BEEN ELABORATED IN VA RIOUS DECISIONS WHICH ARE ALREADY PART OF THE LEGAL NOTE FILED ON 01.09.2021. 11 ITA NOS. 7366, 7367, 7368, 7370 & 7371/MUM/2019 KISHORE H. AJMERA (HUF) & OTHERS 2.5 IN ANY CASE, THE IDENTICAL ISSUE HAS BEEN DECIDED BY THE CO - ORDINATE BENCHES OF THE HON'BLE TRIBUNAL IN OTHER FAMILY CONCERNS' CASES, INVOL VING IDENTICAL FACTS AND CIRCUM ST ANCES. THESE DECISIONS HAVE BEEN ALREADY SUBMITTED BY THE APPELLANT ALONG WITH THE LE GAL NOTE ON 01.09.2021. 13. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF THE AUTHORITIES BELOW. IN THIS CASE THE ASSESSING OFFICER ISSUED NOTICE U/S.148 OF THE ACT DATED 25.02.2016 FOR REOPENING OF ASSESSMENT U/S. 147 OF THE ACT. ASSESSING OFFICER ALSO ISSUED NOTICE U/S. 143(2) OF THE ACT CALLING FOR THE DETAILS AND OBJECTIONS. ASSESSEE VIDE LETTER DATED 28.07.2016 SUBMITTED DETAILED PRELIMINARY OBJECTIONS FOR REOPENING OF ASSESSMENT AND NOT TO PROCEED FURTHER AND THESE OBJECTIONS ARE AS UNDER: - WIT H REFERENCE TO YOUR ABOVE NOTICE, WE HAVE TO SUBMIT AS UNDER: - 1. VIDE YOUR NOTICE DATED 16.07.2016 YOU HAVE CALLED UPON US TO EXPLAIN AS TO WHY THE LONG TERM CAPIT AL (LTG), GAIN EARNED BY US NOT BE TAXED. 2. AT THE OUTSET, WE STRONGLY OBJECT TO THE OBSERVATION MADE BY YOU IN YOUR REASON FOR REOPENING OF ASSESSMENT GIVEN ALONGWITH NOTICE DATED 08.04.2016 FOR THE FOLLOWING AMONGST OTHER GROUNDS AS MENTIONED HEREIN BEL OW. 3. WE SAY THAT OUR ALL TRANSACTIONS EXECUTED ARE GENUINE, AND AT THE PREVAILING MARKET RATE, AS PER THE TREND OF THE MARKET AND ARE DULY SUPPORTED BY ALL POSSIBLE EVIDENCES. 4. ON PERUSING YOUR REASON FOR REOPENING OF ASSESSMENT IT IS SEEN THAT, YOU HA VE RELIED UPON TWO SO CALLED EVIDENCES TO SUPPORT THE ALLEGATION, A. THE STATEMENT OF SHRI JASMIN AJMERA TAKEN DURING THE SEARCH OPERATION AND B. ALLEGED EVIDENCES COLLECTED IN COURSE OF THE SEARCH PROCEEDING AGAINST ONE SHRI SHIRISH C. SHAH. IN THIS PRELI MINARY SUBMISSION, WE DEAL WITH EACH OF THE TWO ALLEGATIONS AS UNDER: - A. STATEMENT OF SHRI JASMIN A J MERA: - HERE, THE SOLE RELIANCE IS PLACED ON THE FACT THAT IN THE STATEMENT SHRI JASMIN AJMERA HE HAD AGREED TO OFFER THE AMOUNT OF CAPITAL GAIN FOR TAXATI ON. IN THIS REGARD, THE FOLLOWING POINTS ARE NOTEWORTHY: - 12 ITA NOS. 7366, 7367, 7368, 7370 & 7371/MUM/2019 KISHORE H. AJMERA (HUF) & OTHERS I . FIRST OF ALL, EXCEPT FOR THIS STATEMENT THERE IS ABSOLUTELY NO EVIDENCE IN SUPPORT OF THE ALLEGATION. NO INCRIMINATING DOCUMENT / EVIDENCE WERE FOUND DURING THE SEARCH FROM HIS OR OUR PROPERTY. N OW, AS FAR AS THE SOLE RELIANCE ON STATEMENT IS CONCERNED, WE UNDERSTAND THAT SUCH ACTION IS CONTRARY TO THE SPECIFIC DIRECTIONS ISSUED BY THE CBDT. IN ANY CASE, AND OTHERWISE ALSO, WE BELIEVE THAT THE LAW IS QUITE WELL SETTLED IN THIS REGARD AND IT HAS BE EN EMPHATICALLY HELD THAT NO ADDITION CAN BE MADE TO THE INCOME OF AN ASSESSEE, MERELY ON THE BASIS OF A STATEMENT, WITHOUT ANY CORROBORATIVE EVIDENCE FOUND DURING THE SEARCH SUPPORTING SUCH ADDITION. II. IN ANY CASE, THE STATEMENT OF SHRI JASMIN AJMERA WA S TAKEN IN COERCION, PRESSURE AND UNDUE INFLUENCE AND GIVEN I N STRESS AND UTTER DURESS. THEREFORE, WE BELIEVE SUCH STATEMENT IS NOT A VALID STATEMENT IN THE EYES OF LAW AND CONSEQUENTLY, IS NOT BINDING ON THE PERSON WHO GAVE THE STATEMENT AND LEAST BINDING ON ANY THIRD PARTY. FURTHER, THE ENTIRE STATEMENT STOOD FULLY RETRACTED BY SHRI JASMIN AJMERA IN HIS DETAILED AFFIDAVIT DATED 02/08/2013 AND 14/08/2015, SUBMITTED TO THE DEPARTMENT, SHRI JASMIN AJMERA IN HIS AFFIDAVITS, HAVE VERY EXHAUSTIVELY DEALT WITH T HE ENTIRE CHAIN OF EVENTS WHICH TRANSPIRED DURING THE COURSE OF THE SEARCH, AS WELL AS, HAS ALSO PLACED ON RECORD THE MANNER IN WHICH HE WAS PRESSURIZED, THREATENED AND ALSO THE CIRCUMSTANCES UNDER WHICH THIS SO CALLED CONFESSION IN THE FORM OF STATEMENT W AS EXTRACTED FROM HIM. III. SHRI JASMIN AJMERA HAS RETRACTED FROM THE STATEMENT/ CONFESSION SO EXTRACTED. WE SAY THAT IN THE GIVEN CIRCUMSTANCES, THE SO CALLED STATEMENT HAS ABSOLUTELY NO EVIDENTIARY VALUE, ON FACT, AS WELL AS IN LAW. IV. IN ANY CASE, THE STATEMENT OF SHRI JASMIN AJMERA IS NOT BINDING ON US AND WE HAVE NOT CONFESSED ANY SUCH DISCLOSURE, WE SAY THAT IN THE GIVEN CIRCUMSTANCES, EVEN THIS SO CALLED STATEMENT HAS ABSOLUTELY NO EVIDENTIARY VALUE, ON FACT, AS WELL AS IN LAW. IN VIEW OF THE ABOVE , I T IS SUBMITTED THAT YOUR RELIANCE ON THE STATEMENT OF SHRI JASMIN AJMERA IS NOT VALID, ON FACT, AS WELL AS IN LAW. B. SEARCH PROCEEDING AGAI NST SHRI SHIRISH C. SHAH IT APPEARS THAT YOUR OBSERVATION IS ALSO BASED ON THE ALLEGED INFORMATION GATHERED IN CO URSE OF SEARCH ACTION AGAINST ONE SHRI SHIRISH C. SHAH. YOUR GOOD OFFICE HAS PROVIDED US DATA COLLECTED BY YOU FROM BSE LTD. WITH RESPECT TO THE TRANSACTIONS IN THE SHARES OF PRRANETA INDUSTRIES LTD., NOW KNOWN AS ADHAAR VENTURE INDIA LTD. ['PRRANETA'] FOR THE PERIOD 01.04.2009 TO 31.12.2011 AND A PEN DRIVE, WHICH CONTAINS COPIES OF THE MATERIAL ALLEGED TO HAVE BEEN SEIZED IN COURSE OF THE SEARCH AND SURVEY ACTION TAKEN AGAINST ONE SHRI SHIRISH C. SHAH, RUNNING INTO THOUSANDS OF PAGES. YOU HAVE ALSO GIVEN H ARD COPIES OF SOME AFFIDAVITS OF VARIOUS PERSONS, WHO ARE ALLEGED TO BE DIRECTORS OF VARIOUS COMPANIES, AGAIN ALLEGED TO BE MANAGED BY SHIRISH SHAH. IN THIS REGARD, WE HAVE TO SUBMIT AS UNDER: - I. DATA PROVIDED OF BSE LTD 1. IT APPEARS THAT THIS DATA SHOWS SALE AND PURCHASE TRANSACTIONS OF PRRANETA. 13 ITA NOS. 7366, 7367, 7368, 7370 & 7371/MUM/2019 KISHORE H. AJMERA (HUF) & OTHERS 2. OUR PRELIMINARY OBSERVATION ON GOING THROUGH THIS DATA IS AS UNDER: I . IT IS SEEN THAT THE SCRIP WAS ACTIVELY TRADED DURING THIS PERIOD. II. IT IS SEEN THAT THERE WERE MULTIPLE BUYERS AND SELLERS IN THE MARKE T. III. IT IS SEEN THAT THERE WAS PARTICIPATION FROM ALL KIND OF CLIENTAL LIKE RETAILS /CORPORATES/ INSTITUTIONS. IV. IT IS FURTHER SEEN THAT, I N FACT MANY PARTIES WHO HAD PURCHASED THE SHARES SOLD BY US IN THE MARKET HAD RESOLD IN THE OPEN MARKET. V. PLEA SE NOTE THIS DATA CONFIRMS OUR TRANSACTIONS ARE EXECUTED THROUGH THE STOCK EXCHANGE, AT THE PREVAILING MARKET RATE AND SAME AUTHENTICATES THE BILLS CUM CONTRACTS AND BANK STATEMENTS ALREADY SUBMITTED BY US IN OUR PREVIOUS SUBMISSIONS. 3. WE FURTHER WOULD L IKE TO DRAW YOUR KIND ATTENTION THAT, IT IS ALSO A MATTER OF ELEMENTARY KNOWLEDGE THAT IN A SCREEN BASED COMPUTERIZED TRADING MECHANISM, TRANSACTIONS OF PURCHASE AND SALE OF SHARES OF A PARTICULAR COMPANY GETS AUTOMATICALLY CONCLUDED WHEN OFFER OF PURCHASE OF THE SHARES AT A PARTICULAR PRICE FOR A PARTICULAR QUANTITY PLACED BY A BROKER ON BEHALF OF A WILLING PURCHASER IS MATCH BY / ACCEPTED BY ANOTHER BROKER ACTING ON BEHALF OF HOLDER OF THE SHARES WHO ACCEPTS TO SELL AT THAT PRICE AND OR VIS - E - VERSA. THE I MPORTANT THING IS THAT THE TRANSACTION IS CONCLUDED AUTOMATICALLY THROUGH THE STOCK EXCHANGE MECHANISM ON THE MATCHING PARAMETERS OF PRICE AND UP TO THAT QUANTITY ONLY WITHOUT ANY DESCRIPTION / CHOICE OF THE SELLING BROKER / BUYING BROKER. IN FACT, THE VER Y PURPOSE BEHIND THIS MECHANISM IS TO BRING TRANSPARENCY AND NOT TO GIVE ANY SUCH DISCRETION ,' CHOICE TO THE BROKERS / CLIENTS. MOST IMPORTANTLY, NEITHER THE SELLING PERSON NOR HIS BROKER IS AWARE ABOUT WHO IS THE ACTUAL PURCHASER OF THE SHARE. AS SUCH, WH EN WE SOLD THE SHARES THROUGH OUR BROKER, WE WERE NOT EVEN AWARE ABOUT THE PERSON PURCHASING THE SHARES MUCH LESS WE HAD NO MEANS TO KNOW THAT. 4. NONE OF THE REGULATORY AUTHORITIES, LIKE SEBI, BSE, RBI ETC. HAS EVEN SUGGESTED, MUCH LESS HELD, THAT THESE T RANSACTIONS WERE BOGUS. IN OTHER WORDS, THE TRANSACTIONS ARE ACCEPTED TO BE PROPER AND GENUINE BY THE CONCERNED REGULATORY AUTHORITIES, WITHOUT ANY SUCH REGULATORY AUTHORITIES TAKING ANY ADVERSE VIEW. IN FACT, THE VERY SAME COMPANY, PRRANETA INDUSTRIES LTD . HAS RECENTLY COME OUT WITH PUBLIC PREFERENTIAL ISSUE OF SHARES, WHICH IS POSSIBLE ONLY AFTER GETTING CLEARANCE OF REGULATORY AUTHORITIES. REFERENCE COPIES ENCLOSED FOR READY REFERENCE. PRRANETA IS REGISTERED AS NBFC WITH RBI (COPY ENCLOSED). IF YOU STILL INTEND TO HOLD OTHERWISE, IT IS YOUR DUTY TO BRING COGENT MATERIAL IN SUPPORT THEREOF. 5. AS SUCH, YOUR LISTING DOWN NAMES OF VARIOUS PARTIES WHO SUPPOSED TO HAVE PURCHASED THE SHARES SOLD BY US HAS ABSOLUTELY NO BEARING ON OUR CASE, AS WE ARE NOT AT ALL CONCERNED WITH THE NAMES OF THE PURCHASERS, MUCH LESS WE ALSO WOULD NOT HAVE THE KNOWLEDGE AS TO WHY SUCH PERSON PURCHASED THE SAID SHARES. THEREFORE, IN ANY CASE, WE HAD ABSOLUTELY NO CONCERN WITH THE ALLEGED GROUP PURCHASING THE SAID SHARES, MUCH LESS TH EIR REASON FOR PURCHASING THE SAME. 6. ONGOING THROUGH THE LIST OF THE ENTITIES WHO ALLEGED TO HAVE PURCHASED THE SHARES SOLD BY US AND WHICH ALLEGED TO HAVE BEEN MANAGED AND OWNED BY SHIRISH SHAH ARE PUBLIC LIMITED LISTED COMPANIES. FOR EXAMPLE, AVANCE 14 ITA NOS. 7366, 7367, 7368, 7370 & 7371/MUM/2019 KISHORE H. AJMERA (HUF) & OTHERS TE CHNOLOGIES LTD /MAHAN INDUSTRIES LTD AND FEW MORE. SIR, HOW CAN THAT BE POSSIBLE? WE BELIEVE THAT PUBLIC LISTED COMPANIES ARE OWNED BY THE SHAREHOLDERS OF THE SAID COMPANY. 7. KIND ATTENTION IS ALSO DRAWN TO THE QUANTITY OF THE SHARES, I.E. TO SAY THAT THE QUANTITY OF THE SHARES WHICH WERE SOLD BY US AND THE SHARES PURCHASED BY THE PURCHASERS, AS SHOWN IN REASON FOR REOPENING OF ASSESSMENT MISS MATCHES. 8. PLEASE NOTE THAT TOTAL QUANTITIES OF SHARES OF PRRANETA ALLEGED TO HAVE BEEN PURCHASE BY COMPANIES MAN AGED AND CONTROLLED BY SHIRISH C. SHAH ARE MUCH LESSER THAN THE QUANTITIES TRADED IN THE EXCHANGE. II. THE SCANNED DOCUMENTS PROVIDED IN THE PEN DRIVE: - 1. AT THE OUTSET, WE FAIL TO UNDERSTAND THE PURPOSE OF GIVING ME 6000 TO 7000 PAGES OF MATERIAL, IN TH E PEN DRIVE FORM, WHICH, AS YOU ARE FULLY AWARE, IS NOT HUMANLY POSSIBLE FOR ANYBODY TO SCAN THROUGH AND VERIFY AND, THAT TOO, IN A SHORT SPAN OF TIME. WE, THEREFORE, HAVE TO REQUEST YOU TO GIVE COPIES OF ONLY THOSE MATERIAL ON WHICH YOU INTEND TO RELY WHI LE FRAMING ASSESSMENTS IN OUR CASE. YOU WILL APPRECIATE THAT IT IS ONLY AFTER KNOWING THE EXACT MATERIAL ON WHICH YOU INTEND TO RELY, AND THE REASON THEREOF, THA T ANY REPLY CAN BE FILED BY US I N DEFENCE. OTHERWISE, DUMPING 6000 TO 7000 PAGES, THAT TOO, IN A PEN DRIVE FORM, DOES NOT SERVE ANY PURPOSE. IN ORDER TO PROVIDE US A PROPER AND FAIR OPPORTUNITY OF BEING HEARD AND TO ENABLE US TO GIVE MEANINGFUL REPLY, FOR OURSELVES, WE HAVE TO REQUEST YOU TO IDENTIFY AND LET US KNOW THE EXACT PAGES / PAPERS / DOCUM ENTS WHICH YOU INTEND TO ACTUALLY RELY AND ALSO LET US KNOW AS TO IN WHAT WAY AND FOR WHAT PURPOSE THEY ARE SOUGHT TO BE SO RELIED UPON. 2. HOWEVER, STRICTLY WITHOUT PREJUDICE TO THE ABOVE AND UNDER PROTEST, WE GIVE OUR VERY PRELIMINARY AND BRIEF OBSERVATI ONS, UPON GOING CURSORILY THROUGH THE CONTENTS OF THE PEN DRIVE, HEREINBELOW: (I ) IN ANY CASE, MANY OF THE DOCUMENTS ARE ROUGH NOTINGS /SCRIBBLINGS / CHITS, ETC., WHICH OTHERWISE ALSO HAVE NO EVIDENTIARY VALUE, BEING 'DUMB' DOCUMENTS. (II) WE ARE NOT AWARE WHO HAS PREPARED THESE DATA/DOCUMENTS/CHITS ETC. AND WE WOULD LIKE TO CROSS - EXAMINE THE PERSON AND/OR THE AUTHOR WHO HAS PREPARED THE DATA, APART FROM THIS BEING A NORMAL AND ESSENTIAL REQUIREMENT OF THE PRINCIPLE OF NATURAL JUSTICE, AS THE DATA APPEARS TO BE INCORRECT, SO FAR AS THE TRANSACTIONS RELATING TO US. (III) THE REST OF THE DETAILS ARE INCOHERENT AND IN NO WAY ARE CONNECTED WITH US. MANY OF THE SCANNED PAGES ARE LOOSE SHEETS, ROUGH PAGES AND SCRIBBLINGS, WHICH DO NOT MAKE ANY SENSE. (IV) IN THE CIRCUMSTANCES, WE SAY THAT NO ADVERSE INFERENCE CAN BE RAISED ON THE BASIS OF THE MATERIAL PROVIDED TO US ON FACT AS WELL AS IN LAW. THIS IS, OF COURSE, WITHOUT PREJUDICE TO OUR PRELIMINARY OBJECTION TO LET US KNOW THE PRECISE MATERIAL THAT YOU INTEND TO RELY UPON ULTIMATELY AND THE REASON THEREOF SO AS TO ENABLE US TO GIVE MEANINGFUL REPLY THEREON. 15 ITA NOS. 7366, 7367, 7368, 7370 & 7371/MUM/2019 KISHORE H. AJMERA (HUF) & OTHERS III. AFFIDAVITS FILED BY THE DIRECTORS OF THE COMPANIES ALLEGED TO B E MANAGED AND CONTROLLED BY SHIRISH SHAH : - 1. AT THE OUTSET, WE FAIL TO UNDERSTAND IN WHAT WAY SUCH AFFIDAVITS ARE SOUGHT TO BE USED AGAINST US. THEREFORE, WE REQUEST YOU TO LET US KNOW THE EXACT RELEVANCE OF THESE AFFIDAVITS IN OUR CASE, SO AS TO GIVE MEANINGFUL REPLY THEREAFTER. 2. STRICTLY WITHOUT PREJUDICE TO THE ABOVE AND UNDER PROTEST, OU R PRELIMINARY OBSERVATIONS IN THIS REGARD ARE AS UNDER: I) FIRST OF ALL, EX - FACIE, THESE AFFIDAVITS DO NOT AT ALL DIRECTLY, INDIRECTLY OR REMOTELY CONCERN US, NOR DO THEY INDICATE INVOLVEMENT OF OURSELVES IN ANY TRANSACTION, MUCH LESS IN ANY DUBIOUS TRANS ACTION. II) BESIDES, OUR FEW OBSERVATIONS REGARDING THE AFFIDAVITS ARE AS UNDER: (A) IN ALL, THERE ARE 134 AFFIDAVITS / DECLARATIONS AND ALL ARE STEREOTYPED. (B) SOME DOCUMENTS ARE STYLED AS'AFFIDAVITS' AND SOME DOCUMENTS ARE STYLED AS' DECLARATIONS'. THE AFFIDAVITS DO NOT APPEAR TO BE LEGALLY AND VALIDLY EXECUTED DOCUMENT OF OATH. ALL STAMP PAPERS APPEAR TO BE PURCHASED FROM ONE VENDOR. ALMOST ALL AFFIDAVITS 134 ON OATH ARE NOTARISED BY ONLY THREE NOTARIES, AND THAT TOO WITHIN FEW DAYS, (81 AFFIDAVITS ARE EXECUTED NOTARIZED ON ONE SINGLE DAY), WHICH IS DIFFICULT TO BELIEVE AS THE DEPONENTS ARE SCATTERED AT DIFFERENT PLACES. EVEN THE FORMAT OF THESE AFFIDAVITS IS NOT AS PER THE OATH ACT. IT IS NOT PROPERLY VERIFIED, IDENTIFIED OR ADMINISTERED. (C) THE PUR POR TED DECLARATIONS ARE NOT OIL PAPER AS REQUIRED UNDER THE LAW. (D) THERE IS NO MENTION OF NOTARIAL REGISTER SR. NO. ON ANY OF THE SAID PURPORTED DECLARATIONS AND AFFIDAVITS. III) IN ANY CASE, AS MENTIONED EARLIER, IF YOU STILL INTEND TO RELY UPON ANY OF THE SE AFFIDAVITS/DECLARATIONS, YOU ARE REQUESTED TO LET US KNOW HOW AND IN WHAT MANNER YOU INTEND TO SO RELY AND ALSO GIVE US AN OPPORTUNITY TO CROSS - EXAMINE SUCH PERSONS. IV) IN ANY CASE, THE AFFIDAVITS / DECLARATIONS DO NOT COVER MANY OTHER COMPANIES/ IND IVIDUALS, WHO HAVE ALLEGED TO HAVE PURCHASED SHARES SOLD BY US ON AUTOMATED EXCHANGE PLATFORM. V ) PLEASE LET US KNOW WHAT ACTIONS HAVE BEEN TAKEN AGAINST THE DEPONENTS AS WELL AS THE CONCERNED COMPANIES AS WELL AS AGAINST SHIRISH C. SHAH. FOR EXAMPLE, WHET HER THE INCOME SUPPOSED TO HAVE BEEN RECEIVED BY THEM FROM SHIRISH C. SHAH HAS BEEN DECLARED / ASSESSED IN THEIR CASE? VI) IN THIS BACKGROUND, THESE LOOSE PAPERS / AFFIDAVITS CANNOT BE CALLED ANY MAT ERIAL, MUCH LESS COGENT MATERIAL , TO REBUT THE PRELIMINAR Y PRESUMPTION ABOUT CORRECTNESS OF THE TRANSACTION. PLEASE NOTE THAT SAID SHIRISH C. SHAH WAS NOWHERE CONCERNED WITH OUR TRANSACTIONS OF SALE NOR WAS HE EVER BEEN CONTACTED FOR ANY SUCH TRANSACTIONS. PLEASE PROVIDE US AN OPPORTUNITY OF CROSS - EXAMINING S AID SHIRISH SHAH AND 16 ITA NOS. 7366, 7367, 7368, 7370 & 7371/MUM/2019 KISHORE H. AJMERA (HUF) & OTHERS ALL THE INDIVIDUALS ON WHOSE STATEMENTS YOU ARE DEPENDING TO BRING AT CORRECT FACTS ON RECORD. THE ABOVE ARE OUR PRELIMINARY SUBMISSIONS / OBJECTIONS ON THE ISSUE. IF YOU STILL INTEND TO PROCEED FURTHER, WE REQUEST THAT THE SAME BE INT IMATED TO US, ALONG WITH THE REASONS THEREOF, TO ENABLE US TO MAKE FURTHER SUBMISSIONS . ON FACT AS WELL AS IN LAW. NEEDLESS TO SAY THAT, IN THE MEANWHILE, IF ANY FURTHER INFORMATION / EXPLANATION IS REQUIRED, ON THE PRELIMINARY ASPECT THE SAME SHALL BE RE A DILY FURNISHED UPON INTIMATION. 14. HOWEVER, THE ASSESSING OFFICER WITHOUT DISPOSING OFF THE PRELIMINARY OBJECTIONS PROCEEDED AND COMPLETED THE RE - ASSESSMENT STATING THAT THE ASSESSEE NEVER SUBMITTED ANY OBJECTIONS TO THE NOTICE ISSUED U/S. 148 OF THE ACT A ND THEREFORE THE QUESTION OF DISPOSING OF THE OBJECTIONS DOES NOT ARISE. THE OBSERVATION OF THE ASSESSING OFFICER IS MISPLACED AS THE ASSESSEE DID FILE ITS PRELIMINARY SUBMISSIONS/OBJECTIONS WHICH WERE NOT DISPOSED OFF BEFORE COMPLETION OF RE - ASSESSMENTS. 15. IN THE CASE OF MAHARASHTRA STATE POWER GENERATION CO. LTD., V. ADDL. CIT (SUPRA) THE TRIBUNAL CONSIDERING THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF GKN DRIVESHAFTS (INDIA) LTD., V. ITO (SUPRA) AND THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF KSS PETRON PVT. LTD., V. ACIT (SUPRA) AND ALSO THE DECISION OF THE COORDINATE BENCH IN THE CASE OF DCIT V . FIRSTSOURCE SOLUTIONS LTD (SUPRA) QUASHED THE RE ASSESSMENT ORDER PASSED U/S. 143 (3) R.W.S. 14 7 OF THE ACT . WHILE QUASHING THE RE - ASSESSMENT ORDER THE COORDINATE BENCH OBSERVED AS UNDER: - 17 ITA NOS. 7366, 7367, 7368, 7370 & 7371/MUM/2019 KISHORE H. AJMERA (HUF) & OTHERS 2.1 THE LD. AUTHORIZED REPRESENTATIVE FOR ASSESSEE [AR], AT THE OUTSET, SUBMITTED THAT THE OBJECTIONS RAISED BY THE ASSESSEE AGAINST REOPENING THE ASSESSMENT WERE NEVER DISPOSED - OFF BY LD. ASSESSING OFFICER AS MANDATED BY THE DECISION OF HONBLE SUPREME COURT IN GKN DRIVESHAFTS (INDIA) LTD. V/S ITO [259 ITR 19] AND THEREFORE, THE REASSESSMENT PROCEEDINGS STOOD VITIATED IN THE EYES OF LAW. RELIANCE HAS BEEN PLACED ON THE DECISION OF JURISDIC TIONAL HONBLE BOMBAY HIGH COURT RENDERED IN KSS PETRON PRIVATE LIMITED V/S ACIT [ITA NO. 224 OF 2014 DATED 03/10/2016] TO SUBMIT THAT THE MATTER COULD ALSO NOT BE RESTORED BACK TO THE FILE OF LD. AO TO PASS ORDER ON OBJECTIONS RAISED BY THE ASSESSEE. 2.2 ON THE OTHER HAND, LD. CIT - DR RELIED ON PARA 3.3(A) OF THE IMPUGNED ORDER WHICH WOULD READ AS UNDER: - 3.3(A) THE APPELLANTS FIRST OBJECTION IS THAT THE AO DID NOT DISPOSE - OFF OBJECTIONS RAISED BY IT IN RESPECT OF RE - OPENING OF THE ASSESSMENT PROCEEDINGS . ON THIS ISSUE THE APPELLANT HAS RELIED ON VARIOUS CASE - LAWS. I HAVE CONSIDERED THE FACTS OF THE CASE AND DECISIONS RELIED ON BY THE APPELLANT. THOUGH AS PER DECISIONS OF THE HON'BLE SUPREME COURT AND OTHER DECISIONS, IT WAS OBLIGATORY ON THE PART OF THE AO TO FIRST DISPOSE - OFF, BY PASSING A SPEAKING ORDER, APPELLANTS OBJECTIONS RAISED AGAINST REOPENING OF THE ASSESSMENT. HOWEVER, THE ASSESSING OFFICERS ACTION OF NOT DISPOSING OFF APPELLANTS OBJECTIONS WAS A PROCEDURAL IRREGULARITY ONLY WHICH DID NOT AF FECT THE LEGALITY OF THE ASSESSMENT ORDER PASSED. IN THE ABOVE DECISIONS RELIED UPON BY THE APPELLANT, THE ASSESSMENT ORDER PASSED WAS NOT HELD TO BE INVALID ON ACCOUNT OF NOT DISPOSING OFF THE ASSESSEES OBJECTIONS RAISED AGAINST RE - OPENING OF THE ASSESSM ENT. IN THOSE CASES THE ASSESSMENT ORDER WAS SET ASIDE TO THE FILE OF THE AO FOR FIRST DISPOSING OFF THE OBJECTIONS BY PASSING A SPEAKING ORDER AND THEN FRAME ASSESSMENT ORDER. THEREFORE, ON ACCOUNT OF THIS IRREGULARITY, THE ASSESSMENT ORDER PASSED BY THE AO CANNOT BE HELD TO BE INVALID. AS PER EXISTING PROVISIONS OF THE ACT, THE UNDERSIGNED HAS NO POWER TO SET ASIDE THE ASSESSMENT ORDER PASSED BY THE AO. THEREFORE, APPELLANTS OBJECTIONS/ARGUMENTS ON THIS ISSUE ARE NOT ACCEPTABLE. IN THE ABOVE BACKGROUND, LD. CIT - DR PLEADED FOR RESTORATION OF MATTER BACK TO THE FILE OF LD. AO FOR DISPOSAL OF ASSESSEES OBJECTION AGAINST REASSESSMENT PROCEEDINGS. HOWEVER, THE FACT THAT THE ASSESSEE HAD RAISED OBJECTIONS AGAINST THE REOPENING OF THE ASSESSMENT AND THE SAME WA S NOT DISPOSED - OFF BY LD. AO, REMAIN UNCONTROVERTED. NOTHING ON RECORD WOULD ESTABLISH THAT THE ASSESSEES OBJECTIONS AGAINST REOPENING OF ASSESSMENT WERE EVER CONSIDERED AND REJECTED BY LD. AO AT ANY POINT OF TIME, DURING REASSESSMENT PROCEEDINGS. 3. AFTE R DUE CONSIDERATION OF FACTUAL MATRIX, WE FIND THAT THE BINDING JUDICIAL PRECEDENT IN THE SHAPE OF CITED DECISION OF HONBLE BOMBAY HIGH COURT SQUARELY APPLIES TO THE FACT OF THE CASE. THE RELEVANT OBSERVATION OF HONBLE COURT, FOR EASE OF REFERENCE, COULD BE EXTRACTED IN THE FOLLOWING MANNER: - 8. WE NOTE THAT ONCE THE IMPUGNED ORDER FINDS THE ASSESSMENT ORDER IS WITHOUT JURISDICTION AS THE LAW LAID DOWN BY THE APEX COURT IN GKN DRIVESHAFTS (SUPRA) HAS NOT BEEN FOLLOWED, THEN THERE IS NO REASON TO RESTORE THE ISSUE TO THE ASSESSING OFFICER TO 18 ITA NOS. 7366, 7367, 7368, 7370 & 7371/MUM/2019 KISHORE H. AJMERA (HUF) & OTHERS PASS A FURTHER/FRESH ORDER. IF THIS IS PERMITTED, IT 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 PROCEDUR E), YET THE ONLY CONSEQUENCE, WOULD BE THAT IN APPEAL, IT WOULD BE RESTORED TO THE ASSESSING OFFICER FOR FRESH ADJUDICATION AFTER FOLLOWING THE DUE PROCEDURE. THIS WOULD LEAD TO UNNECESSARY HARASSMENT OF THE ASSESSEE BY REVIVING STALE/ OLD MATTERS. 9. IN FACT, TO ENSURE THAT REOPENING NOTICES ARE DISPOSED OF, EXPEDITIOUSLY THE PARLIAMENT ITSELF HAS PROVIDED IN SECTION 153(2) OF THE ACT A PERIOD OF LIMITATION WITHIN WHICH THE ASSESSING OFFICER MUST PASS AN ORDER ON THE NOTICE OF REOPENING I.E. WITHIN ONE YE AR FROM THE END OF THE FINANCIAL YEAR IN WHICH THE NOTICE WAS ISSUED. IN FACT, SECTION 153 (2A) OF THE ACT AS IN FORCE AT THE RELEVANT TIME ITSELF PROVIDES THAT AN ORDER OF FRESH ASSESSMENT, CONSEQUENT TO THE ORDER OF TRIBUNAL UNDER SECTION 254 OF THE ACT, WOULD HAVE 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 TRIBUNAL AND RECEIVED BY THE COMMISSIONER OF INCOME TAX. 10. THE DIRECTOR OF THE APPELLANT HAS FILED AN AFFIDAVI T DATED 19TH SEPTEMBER, 2006. IN THE AFFIDAVIT, IT IS STATED THAT CONSEQUENT TO THE IMPUGNED ORDER OF THE TRIBUNAL DATED 14TH AUGUST, 2013, THE ASSESSING OFFICER HAS NOT PASSED ANY ORDER OF REASSESSMENT. TIME WAS GRANTED ON THE LAST OCCASION TO ENABLE THE RESPONDENT TO RESPOND TO THE AFFIDAVIT DATED 19 TH SEPTEMBER, 2006 OF THE DIRECTOR OF THE APPELLANT COMPANY. THE RESPONDENT IS UNABLE TO DISPUTE THE FACTS STATED IN THE AFFIDAVIT DATED 19TH SEPTEMBER, 2016 FILED BY THE DIRECTOR OF THE APPELLANT COMPANY. THE TIME TO PASS A ORDER ON THE NOTICE DATED 28TH MARCH, 2008, EVEN CONSEQUENT TO THE IMPUGNED ORDER OF THE TRIBUNAL, HAS LAPSED. 11. THEREFORE, ON THE ABOVE FACTS AND LAW, THE SUBSTANTIAL QUESTION OF LAW IS ANSWERED IN THE NEGATIVE I.E. IN FAVOUR OF THE APPE LLANT - ASSESSEE AND AGAINST THE RESPONDENT - REVENUE. THIS DECISION HAS SUBSEQUENTLY BEEN FOLLOWED BY THE CO - ORDINATE BENCH OF THE TRIBUNAL IN NUMBER OF CASES, FEW OF WHICH COULD BE TABULATED AS FOLLOWS: 1. DCIT M/S. NATIONAL BANK FOR AGRICULTURE AND RURAL DEVELOPMENT [ITA NO.4964/MUM/2014 (A.Y.2004 - 05) DATED 28/10/2016] 2. BALDEV RAMRATAN SHARMA VS. ACIT [ITA NO.1909/MUM/2017 (A.Y.2009 - 10) DATED 28/08/2018] 3. DCIT V/S FIRSTSOURCE SOLUTIONS LTD. [ITA NOS. 3985 - 86/MUM/2016 DATED 22/05/2019] 4. THE CO - ORDIN ATE BENCH OF THE TRIBUNAL IN DCIT V/S FIRSTSOURCE SOLUTIONS LTD. [SUPRA], AFTER CONSIDERING THE CONTRARY CASE - LAWS AS CITED BY THE REVENUE, HAS CONCLUDED THE MATTER IN THE FOLLOWING MANNER: - 7. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. UNDISPUTED FACTUAL POSITION, AS CULLED OUT FROM THE MATERIAL ON RECORD, CLEARLY REVEALS THAT IN THE COURSE OF RE 19 ITA NOS. 7366, 7367, 7368, 7370 & 7371/MUM/2019 KISHORE H. AJMERA (HUF) & OTHERS ASSESSMENT PROCEEDINGS, THOUGH, THE ASSESSEE HAD RAISED OBJECTIONS CHALLENGING THE VALIDITY OF RE OPENING OF ASSESSMENTS UNDER SECT ION 147 OF THE ACT, HOWEVER, THE ASSESSING OFFICER HAS NOT DISPOSED OF THE OBJECTIONS INDEPENDENTLY BY WAY OF SEPARATE ORDERS BEFORE COMPLETION OF ASSESSMENT PROCEEDINGS UNDER SECTION 143(3) R/W 147 OF THE ACT. THE HON'BLE SUPREME COURT IN GKN DRIVESHAFTS INDIA LTD. (SUPRA) HAS HELD THAT BEFORE COMPLETION OF THE ASSESSMENT, THE ASSESSING OFFICER IS DUTY BOUND TO DISPOSE OF THE OBJECTIONS OF THE ASSESSEE SEPARATELY. THEREFORE, THE ASSESSING OFFICER IN THE INSTANT APPEAL HAS NOT FOLLOWED THE DUE JUDICIAL PROC ESS WHILE DEALING WITH THE OBJECTIONS OF THE ASSESSEE. FOR THAT REASON, THE IMPUGNED ASSESSMENT ORDERS ARE LEGALLY UNSUSTAINABLE. NOW THE ISSUE WHICH ARISES IS, WHETHER IN SUCH CIRCUMSTANCES, THE RE ASSESSMENT ORDERS PASSED HAVE TO BE QUASHED AS VOID AB IN ITIO OR THEY ARE TO BE RESTORED BACK TO THE ASSESSING OFFICER FOR ENABLING HIM TO DISPOSE OF THE OBJECTIONS OF THE ASSESSEE AND PASS FRESH ASSESSMENT ORDERS. IN OUR VIEW, THE ISSUE IS NO MORE RES INTEGRA IN VIEW OF THE DECISION OF THE HON'BLE JURISDICTIONA L HIGH COURT IN KSS PETRON PVT. LTD. (SUPRA), WHEREIN, THE HON'BLE JURISDICTIONAL HIGH COURT HAS HELD THAT IF THE RE ASSESSMENT ORDER IS PASSED WITHOUT DISPOSING OF THE OBJECTIONS RAISED BY THE ASSESSEE, THEY HAVE TO BE QUASHED AND NO SECOND OPPORTUNITY CA N BE GIVEN TO THE ASSESSING OFFICER TO PASS FRESH ASSESSMENT ORDERS AFTER DISPOSING OF THE OBJECTIONS OF THE ASSESSEE. THE SAME VIEW HAS BEEN EXPRESSED BY THE CO ORDINATE BENCH IN THE DECISIONS CITED BY THE LEARNED SR. COUNSEL FOR THE ASSESSEE. UPON CAREFU L READING OF THE DECISION OF THE HON'BLE SUPREME COURT IN LARSEN TOUBRO LTD. V/S STATE OF JHARKHAND & ORS., IN CIVIL APPEAL NO.5390/2007, CITED BY LEARNED DEPARTMENTAL REPRESENTATIVE, WE FIND IT TO BE NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE, AS THE SAID DECISION IS NOT ON THE ISSUE OF VALIDITY OF RE ASSESSMENT ORDER ON ACCOUNT OF NON DISPOSAL OF OBJECTION RAISED BY THE ASSESSEE. IT IS RELEVANT TO OBSERVE, POST CONCLUSION OF HEARING OF THE APPEAL, THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS SUBMITTE D A NOTE CITING CERTAIN DECISIONS IN SUPPORT OF THE PROPOSITION THAT NON DISPOSAL OF OBJECTION IS A PROCEDURAL IRREGULARITY, HENCE, THE ASSESSMENT ORDER SHOULD BE SET ASIDE FOR ENABLING THE ASSESSING OFFICER TO DISPOSE OF THE OBJECTIONS AND PASS A FRESH A SSESSMENT ORDER. THE FIRST DECISION RELIED UPON BY THE LEARNED DEPARTMENTAL REPRESENTATIVE IS, HOME FINDERS HOUSING LTD. V/S ITO, [2018] 94 TAXMANN.COM 84 (SC). THIS IS A MATTER ARISING OUT OF A JUDGMENT DELIVERED BY THE HONBLE MADRAS HIGH COURT HOLDING T HAT NON DISPOSAL OF OBJECTION BEFORE COMPLETION OF ASSESSMENT IS A PROCEDURAL IRREGULARITY WHICH CAN BE CURED BY SETTING ASIDE THE ASSESSMENT ORDER TO THE ASSESSING OFFICER FOR DISPOSING OF ASSESSEES OBJECTION AND THEREAFTER COMPLETING THE ASSESSMENT. AGA INST THE AFORESAID DECISION OF THE HONBLE MADRAS HIGH COURT, THE ASSESSEE FILED A SPECIAL LEAVE PETITION (SLP) BEFORE THE HON'BLE SUPREME COURT. THE HON'BLE SUPREME COURT IN THE DECISION CITED SUPRA, DISMISSED THE SLP IN LIMINE WITHOUT LAYING DOWN ANY RAT IO. THE ORDER PASSED BY THE HONBLE SUPREME COURT IS AS UNDER: - 20 ITA NOS. 7366, 7367, 7368, 7370 & 7371/MUM/2019 KISHORE H. AJMERA (HUF) & OTHERS THE SPECIAL LEAVE PETITION IS DISMISSED. PENDING APPLICATION STANDS DISPOSED OF. 8. IT IS A FAIRLY WELL SETTLED LEGAL POSITION THAT DISMISSAL OF SLP IN LIMINE AT THE STAGE OF ADMISSION WITH OUT A SPEAKING OR REASONED ORDER DOES NOT CONSTITUTE A BINDING PRECEDENT UNDER ARTICLE 141 OF THE CONSTITUTION OF INDIA. THIS PRINCIPLE HAS BEEN WELL PROPOUNDED IN CASE OF KUNHAYAMMED VS. STATE OF KERALA 2001(129) ELT 11 (S.C.). AFORESAID VIEW WAS AGAIN AF FIRMED BY THE HONBLE SUPREME COURT IN CASE OF KHODAY DISTILLERIES LTD. VS. SHREE MAHADESHWARA SAHAKARA SAKKARE KARKHANE LTD. WHILE DISPOSING OF CIVIL APPEAL NO.2432 OF 2019 IN JUDGMENT DATED. 01.03.2019. THEREFORE, IT CANNOT BE SAID THAT IN THE AFORESAID DECISION, THE HON'BLE SUPREME COURT HAS LAID DOWN THE PROPOSITION THAT NON DISPOSAL OF OBJECTIONS AGAINST THE VALIDITY OF PROCEEDINGS INITIATED UNDER SECTION 147 OF THE ACT IS A PROCEDURAL IRREGULARITY WHICH CAN BE CURED IF THE ASSESSING OFFICER IS GIVEN A N OPPORTUNITY TO DISPOSE OF THE OBJECTIONS OF THE ASSESSEE AND THEREAFTER COMPLETE THE ASSESSMENT. MOREOVER, THE DECISION OF THE HON'BLE SUPREME COURT IN GKN DRIVESHAFTS INDIA LTD. (SUPRA) HAS NOT BEEN OVERRULED AND STILL HOLDS THE FIELD. THE NEXT DECISION CITED BY THE LEARNED DEPARTMENTAL REPRESENTATIVE IS OF THE HON'BLE JURISDICTIONAL HIGH COURT IN NTUC INCOME INSURANCE CO OPERATIVE LTD. V/S DDIT, [2013] 33 TAXMANN.COM 255 (BOM.). ON A CAREFUL READING OF THE AFORESAID DECISION, IT IS EVIDENT THAT THE FACT S ON THE BASIS OF WHICH THE HON'BLE JURISDICTIONAL HIGH COURT RESTORED BACK THE ISSUE TO THE ASSESSING OFFICER TO RE FRAME ASSESSMENT DE NOVO IS COMPLETELY DIFFERENT FROM THE PRESENT APPEAL. IN THE CASE BEFORE THE HON'BLE JURISDICTIONAL HIGH COURT, THE ASS ESSING OFFICER HAD NOT ONLY COMMUNICATED THE REASONS FOR REOPENING, BUT, BY A SEPARATE COMMUNICATION HAD INTIMATED THE ASSESSEE THAT ALL CONDITIONS LAID DOWN IN GKN DRIVESHAFTS INDIA LTD. HAS BEEN MET. ADMITTEDLY, THE ASSESSEE DID NOT CHALLENGE THE AFORESA ID DECISION OF ASSESSING OFFICER. SUBSEQUENTLY, THE REASSESSMENT ORDER WAS SUBJECTED TO THE PROCEEDINGS UNDER SECTION 263 OF THE ACT. IN OF REVISION PROCEEDING THE ASSESSEE CONTENDED THAT DUE TO LACK OF OPPORTUNITY VARIOUS DOCUMENTS/EVIDENCES COULD NOT BE PRODUCED BEFORE THE ASSESSING OFFICER. CONSIDERING THE AFORESAID SUBMISSION OF THE ASSESSEE, THE COMMISSIONER SET ASIDE THE ASSESSMENT ORDER WITH A DIRECTION TO FRAME DE NOVO ASSESSMENT. DURING THE FRESH ASSESSMENT PROCEEDING ASSESSEE PLEADED THAT THE OBJE CTION AGAINST REOPENING OF ASSESSMENT SHOULD BE DISPOSED OF FIRST. IN THE AFORESAID FACTUAL CONTEXT, THE HON'BLE JURISDICTIONAL HIGH COURT DID NOT ENTERTAIN ASSESSEES PLEA. HOWEVER, THE HON'BLE JURISDICTIONAL HIGH COURT IN KSS PETRON PVT. LTD. (SUPRA), IN NO UNCERTAIN TERMS, HAS HELD THAT IF THE ASSESSING OFFICER BEFORE COMPLETION OF ASSESSMENT HAS NOT DISPOSED OF THE OBJECTION, THE ASSESSMENT ORDER CANNOT BE RESTORED BACK TO THE ASSESSING OFFICER FOR FRAMING ASSESSMENT DE NOVO AFTER DISPOSAL OF THE OBJECT IONS OF THE ASSESSEE. THOUGH, THE HON'BLE MADRAS HIGH COURT IN CASE OF HOME FINDERS HOUSING LTD. REFERRED TO EARLIER AS WELL AS THE HON'BLE GUJARAT HIGH COURT IN MGM EXPORTS V/S DCIT, [2010] 323 ITR 33 (GUJ.) AND PCIT V/S SAGAR DEVELOPERS, [2016] 21 ITA NOS. 7366, 7367, 7368, 7370 & 7371/MUM/2019 KISHORE H. AJMERA (HUF) & OTHERS 72 TAXMAN N.COM 321 (GUJ.) HAVE HELD CONTRARY VIEW, HOWEVER, WE ARE BOUND BY THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT IN KSS PETRON PVT. LTD. (SUPRA). 9. IN VIEW OF THE AFORESAID, WE DO NOT FIND ANY INFIRMITY IN THE ORDERS PASSED BY LEARNED COMMISSIONE R (APPEALS) IN HOLDING THE ASSESSMENT ORDERS PASSED TO BE LEGALLY UNSUSTAINABLE. ACCORDINGLY, GROUNDS RAISED IN BOTH THE APPEALS ARE DISMISSED. RESPECTFULLY FOLLOWING THE CITED BINDING JUDICIAL PRECEDENTS, THE ACTION OF LD. FIRST APPELLATE AUTHORITY IN UPH OLDING THE REASSESSMENT PROCEEDINGS, COULD NOT BE SAID TO BE IN ACCORDANCE WITH LAW. THEREFORE, WE QUASH THE REASSESSMENT ORDER DATED 29/12/2009 PASSED BY LD. ASSESSING OFFICER. IN VIEW OF THE SAME, DEALING INTO THE MERITS OF THE CASE BECOME MERELY ACADEMI C IN NATURE AND THEREFORE, WE REFRAIN FROM DEALING THE SAME. GROUND NO. 1 STANDS ALLOWED WHICH MAKES OTHER GROUNDS OF APPEAL INFRUCTUOUS . 16. IN THE CASE OF FOMENTO RESORTS & HOTELS LTD., V. ACIT (SUPRA) THE HON'BLE BOMBAY HIGH COURT HELD AS UNDER: 13. IN THE PRESENT CASE, THE APPELLANTS DID LODGE THEIR OBJECTIONS VIDE LETTER DATED 14TH APRIL, 2003. BY A FURTHER LETTER DATED 25TH MARCH, 2004, THE APPELLANTS REQUESTED THE ASSESSING OFFICER TO DISPOSE OF SUCH OBJECTIONS BY PASSING A SPEAKING ORDER BEFO RE PROCEEDING WITH THE REASSESSMENT IN RESPECT OF THE ASSESSMENT YEAR 1997 - 98. HOWEVER, THE ASSESSING OFFICER, WITHOUT PROCEEDING TO DISPOSE OF THE OBJECTIONS RAISED BY THE APPELLANTS BY PASSING A SPEAKING ORDER, STRAIGHT AWAY PROCEEDED TO MAKE THE ASSESSM ENT ORDER DATED 26TH MARCH, 2004, BRINGING TO CHARGE TAXABLE EXPENDITURE ON 10,22,73,987/ - . THE ASSESSMENT ORDER DATED 26TH MARCH, 2004, NO DOUBT, DEALS WITH THE OBJECTIONS RAISED BY THE APPELLANT AND PURPORTS TO DISPOSE OF THE SAME. MS. LINHARES CONTENDS THAT THIS IS A SUFFICIENT COMPLIANCE WITH THE PROCEDURE SET OUT IN GKN DRIVESHAFTS (INDIA) LTD. (SUPRA), ASSUMING THAT THE SAME IS AT ALL APPLICABLE TO THE PROCEEDINGS UNDER THE SAID ACT. MR. DADA, HOWEVER, SUBMITS THAT SUCH DISPOSAL IN THE ASSESSMENT ORD ER ITSELF DOES NOT CONSTITUTE THE COMPLIANCE WITH THE MANDATORY CONDITIONS PRESCRIBED BY THE HONBLE SUPREME COURT IN GKN DRIVESHAFTS (INDIA) LTD. (SUPRA). IN SUPPORT, AS NOTED EARLIER, MR. DADA RELIES UPON BAYER MATERIAL SCIENCE (P) LTD. (SUPRA) AND KSS P ETRON PRIVATE LTD. (SUPRA) . 14. THE CONTENTION OF MS. LINHARES THAT THE DECISIONS RELIED UPON BY MR. DADA RELATE TO THE PROVISIONS OF THE INCOME TAX ACT AND, THEREFORE, ARE NOT APPLICABLE TO THE PROCEEDINGS UNDER THE EXPENDITURE TAX ACT, CANNOT BE ACCEPTED . IN THE FIRST PLACE, THE PROVISIONS RELATING TO REOPENING OF ASSESSMENT ARE ALMOST PARI MATERIA. SECONDLY, IN SO FAR AS ASSESSMENT YEAR 1995 - 96 IS CONCERNED, THE RESPONDENT APPLIED THE VERY SAME RULING IN GKN DRIVESHAFTS (INDIA) LTD. (SUPRA) TO HOLD THAT THE NOTICE OF REOPENING OF ASSESSMENT WAS ULTRA VIRES SECTION 11 OF THE SAID ACT. THIS VIEW, IN THE SPECIFIC CONTEXT OF THE SAID ACT AND INCIDENTALLY IN THE SPECIFIC CONTEXT OF THIS VERY APPELLANT, WAS UPHELD NOT ONLY BY THIS COURT, BUT ALSO BY THE 22 ITA NOS. 7366, 7367, 7368, 7370 & 7371/MUM/2019 KISHORE H. AJMERA (HUF) & OTHERS HONBLE SUPREME COURT. THIS WAS IN ETA NO.1 AND 5/PANJ/01 DECIDED BY THE TRIBUNAL ON 4.4.2006. 15. THE AFORESAID DECISION OF THE ITAT WAS APPEALED BY THE RESPONDENT VIDE TAX APPEAL NO.71/2006. THIS APPEAL WAS DISMISSED BY THIS COURT VIDE ORDER DATED 27TH NOVEMBER , 2006, WHICH READS THUS : HEARD THE LEARNED CO UNSEL ON BEHALF OF THE PARTIES. THIS APPEAL IS FILED AGAINST THE ORDER DATED 4 - 4 - 2006 OF THE ITAT WHEREIN IN PARA 7 THE LEARNED ITAT HAS COME TO THE CONCLUSION THAT THE ASSESSING OFFICER IS REQUIRED TO GIVE REASONS, WHEN ASKED FOR BY THE ASSESSEE. GIVING OF REASONS HAS GOT TO BE CONSIDERED AS IMPLICIT IN SECTION 11 OF THE EXPENDITURE TAX ACT, 1987. IT IS NOW WELL SETTLED THAT GIVING REASONS IN SUPPORT OF AN ORDER IS PART OF COMPLYING WITH THE PRINCIPLES OF N ATURAL JUSTICE. IN THE LIGHT OF THAT, NO FAULT COULD BE FOUND WITH THE ORDER OF THE LEARNED ITAT AND AS SUCH NO SUBSTANTIAL QUESTION OF LAW ARISES AS WELL. APPEAL DISMISSED. 16. THE RESPONDENT, INSTITUTED A SPECIAL LEAVE TO APPEAL (CIVIL) NO.5711/2007 WH ICH WAS, HOWEVER, DISMISSED BY THE HONBLE APEX COURT VIDE ORDER DATED 16/7/2007, BY OBSER VING THAT THERE WERE NO MERITS. 17. ACCORDINGLY, FOR THE AFORESAID REASONS, WE ARE UNABLE TO ACCEPT MS. LINHARESS CONTENTION BASED UPON THE ANY ALLEGED VARIANCE BETW EEN THE PROVISIONS OF THE SAID ACT AND THE PROVISIONS OF THE INCOME TAX ACT, IN SO FAR AS APPLICABILITY OF THE PRINCIPLES IN GKN DRIVESHAFTS (INDIA) LTD. (SUPRA) IS CONCERNED. 18. THE MOOT QUESTION IS, THEREFORE, THE DISPOSAL OF THE OBJECTIONS BY THE ASSES SING OFFICER IN HIS ASSESSMENT ORDER DATED 26TH MARCH, 2004 CONSTITUTES SUFFICIENT COMPLIANCE WITH THE PROCEDURE PRESCRIBED BY THE HONBLE SUPREME COURT IN THE CASE OF GKN DRIVESHAFTS (INDIA) LTD. (SUPRA) OR, WHETHER IT WAS NECESSARY FOR THE ASSESSING OFFI CER TO HAVE FIRST DISPOSED OF THE APPELLANTS OBJECTIONS BY PASSING A SPEAKING ORDER AND ONLY UPON COMMUNICATION OF THE SAME TO THE APPELLANTS, PROCEEDED TO REOPEN THE ASSESSMENT FOR THE ASSESSMENT YEAR 1997 - 98. 19. VIRTUALLY, AN IDENTICAL ISSUE AROSE IN THE CASES OF BAYER MATERIAL SCIENCE (P) LTD. (SUPRA) AND KSS PETRON PRIVATE LTD. (SUPRA) BEFORE THE DIVISION BENCHES OF OUR HIGH COURT AT BOMBAY. 20 . IN BAYER MATERIAL SCIENCE (P) LTD. (SUPRA), BY A NOTICE DATED 6/2/2013, THE REVENUE SOUGHT TO REOPEN THE ASSESSMENT IN THE YEAR 2007 - 08. THE ASSESSEE FILED A REVISED RETURN OF INCOME AND SOUGHT FOR REASONS RECORDED IN SUPPORT OF THE NOTICE DATED 6.2.2013. THE REASONS WERE FURNISHED ONLY ON 19.3.2015. THE ASSESSEE LODGED OBJECTIONS TO THE REASONS ON 25TH MARCH , 2015. THE ASSESSING OFFICER, WITHOUT DISPOSING OF THE PETITIONERS OBJECTIONS, MADE A DRAFT ASSESSMENT ORDER DATED 30TH MARCH, 2015, SINCE THIS WAS A MATTER INVOLVING TRANSFER PRICING. IN SUCH CIRCUMSTANCES, THE DIVISION BENCH OF THIS COURT, SET ASIDE TH E ASSESSMENT ORDER BY OBSERVING THAT THE COURT WAS UNABLE TO UNDERSTAND HOW THE ASSESSING OFFICER COULD, AT ALL, EXERCISE THE JURISDICTION AND ENTER UPON AN 23 ITA NOS. 7366, 7367, 7368, 7370 & 7371/MUM/2019 KISHORE H. AJMERA (HUF) & OTHERS INQUIRY ON THE REOPENING NOTICE BEFORE DISPOSING OF THE OBJECTIONS ON THE REASONS FURNISHED TO THE ASSESSEE. THIS COURT HELD THAT THE PROCEEDINGS INITIATED BY THE TRANSFER PRICING OFFICER (TPO), ON THE BASIS OF SUCH A DRAFT ASSESSMENT ORDER, WERE WITHOUT JURISDICTION AND QUASHED THE SAME. 21. SIMILARLY, IN THE CASE OF KSS PETRON PRIVATE LTD. (SUPRA), T HIS COURT WAS CONCERNED WITH THE FOLLOWING SUBSTANTIAL QUESTION OF LAW : WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE TRIBUNAL WAS JUSTIFIED IN RESTORING THE ISSUE TO THE ASSESSING OFFICER AFTER HAVING QUASHED/SET ASIDE THE ORDER DAT ED 14TH DECEMBER, 2009 PASSED BY THE ASSESSING OFFICER WITHOUT HAVING DISPOSED OF THE OBJECTIONS FILED BY THE APPELLANT TO THE REASONS RECORDED IN SUPPORT OF THE REOPENING NOTICE DATED 28TH MARCH, 2008 ? 22. IN THE AFORESAID CASE, THE ASSESSING OFFICER HA D PURPORTED TO DISPOSE OF THE OBJECTIONS TO THE REASONS IN THE ASSESSMENT ORDER, CONSEQUENT UPON REOPENING OF THE ASSESSMENT. THIS COURT, HOWEVER, HELD THAT THE PROCEEDINGS FOR REOPENING OF ASSESSMENT PRIOR TO DISPOSING OF THE ASESSEES OBJECTIONS BY PASSI NG A SPEAKING ORDER, WAS AN EXERCISE IN EXCESS OF JURISDICTION. 23. KSS PETRON PRIVATE LTD. (SUPRA), THIS IS WHAT THE DIVISION BENCH HAS OBSERVED AT PARAGRAPHS 7 AND 8 OF THE JUDGMENT : 7. ON FURTHER APPEAL, THE TRIBUNAL PASSED THE IMPUGNED ORDER. BY THE IMPUGNED ORDER IT HELD THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN FINALIZING THE ASSESSMENT, WITHOUT HAVING FIRST DISPOSED OF THE OBJECTIONS OF THE APPELLANT. THIS IMPUGNED ORDER HOLDS THE ASSESSING OFFICER IS OBLIGED TO DO IN TERMS OF THE APEX COURT' S DECISION IN GKN DRIVESHAFTS (INDIA) LTD., V/S. ITO 259 ITR 19. IN THE AFORESAID CIRCUMSTANCES, THE ORDER OF THE CIT(A) AND THE ASSESSING OFFICER WERE QUASHED AND SET ASIDE. HOWEVER, AFTER HAVING SET ASIDE THE ORDERS, IT RESTORED THE ASSESSMENT TO THE ASS ESSING OFFICER TO PASS FRESH ORDER AFTER DISPOSING OF THE OBJECTIONS TO REOPENING NOTICE DATED 28TH MARCH, 2008, IN ACCORDANCE WITH LAW. 8. WE NOTE THAT ONCE THE IMPUGNED ORDER FINDS THE ASSESSMENT ORDER IS WITHOUT JURISDICTION AS THE LAW LAID DOWN BY THE APEX COURT IN GKN DRIVESHAFTS (SUPRA) HAS NOT BEEN FOLLOWED, THEN THERE IS NO REASON TO RESTORE THE ISSUE TO THE ASSESSING OFFICER TO PASS A FURTHER/FRESH ORDER. IF THIS IS PERMITTED, IT WOULD GIVE A LICENCE TO THE ASSESSING OFFICER TO PASS ORDERS ON REOPE NING NOTICE, WITHOUT JURISDICTION (WITHOUT COMPLIANCE OF THE LAW IN ACCORDANCE WITH THE PROCEDURE), YET THE ONLY CONSEQUENCE, WOULD BE THAT IN APPEAL, IT WOULD BE RESTORED TO THE ASSESSING OFFICER FOR FRESH ADJUDICATION AFTER FOLLOWING THE DUE PROCEDURE. T HIS WOULD LEAD TO UNNECESSARY HARASSMENT OF THE ASSESSEE BY REVIVING STALE/ OLD MATTERS. 24 ITA NOS. 7366, 7367, 7368, 7370 & 7371/MUM/2019 KISHORE H. AJMERA (HUF) & OTHERS 24. ACCORDING TO US, THE RULINGS IN BAYER MATERIAL SCIENCE (P) LTD. (SUPRA) AND KSS PETRON PRIVATE LTD. (SUPRA) AFFORD A COMPLETE ANSWER TO THE CONTENTIONS RAISED BY MS. LINHARES IN DEFENCE OF THE IMPUGNED ORDER. 25. SINCE, IN THE PRESENT CASE, THE ASSESSING OFFICER HAS PURPORTED TO ASSUME THE JURISDICTION FOR REOPENING OF THE ASSESSMENT, WITHOUT HAVING FIRST DISPOSED OF THE ASSESSEES OBJECTIONS TO THE REASONS BY PAS SING A SPEAKING ORDER, FOLLOWING THE LAW LAID DOWN IN GKN DRIVESHAFTS (INDIA) LTD. (SUPRA), BAYER MATERIAL SCIENCE (P) LTD. (SUPRA) AND KSS PETRON PRIVATE LTD. (SUPRA), WE ARE CONSTRAINED TO HOLD THAT SUCH ASSUMPTION OF JURISDICTION BY THE ASSESSING OFFICE R WAS ULTRA VIRES SECTION 11 OF THE SAID ACT. THE FIRST SUBSTANTIAL QUESTION OF LAW WILL, ACCORDINGLY, HAVE TO BE ANSWERED IN FAVOUR OF THE APPELLANT AND AGAINST THE RESPONDENT - REVENUE. 17. AS COULD BE SEEN FROM THE ABOVE DECISION OF THE HON'BLE BOMBAY HIGH C OURT EVEN IF ASSESSING OFFICER DISPOSED OFF THE OBJECTIONS RAISED BY THE ASSESSEE IN THE ASSESSMENT ORDER WHILE COMPLETING THE RE - ASSESSMENT THAT IS NOT IN COMPLIANCE WITH THE DECISION OF THE HON'BL E SUPREME COURT IN THE CASE OF GKN DRIVESHAFTS (INDIA) LTD ., (SUPRA) IN OTHER WORDS THE ASSESSING OFFICER SHALL PASS A SEPARATE SPEAKING ORDER DISPOSING OFF THE PRELIMINARY OBJECTIONS RAISED BY THE ASSESSE E IN REOPENING THE ASSESSMENT. 18. WE ALSO NOTICED THAT IDENTICAL ISSUE CAME UP IN THE FOLLOWING CASES AND THE TR IBUNAL QUASHED THE RE - ASSESSMENT ORDERS AS THE ASSESSING OFFICER DID NOT DISPOSE OFF THE OBJE CTIONS FILED BY THE ASSESSEE: (I) JITEN AJMERA ( HUF ) V . DCIT IN ITA.NO. 4999/MUM/2018 A.Y. 2011 - 12 DATED 08.12.2020 (II) MANISH AJMERA ( HUF ) V. DCIT IN ITA.NO. 5001/MUM/2 018 A.Y. 2011 - 12 DATED 08.12.2020 (III) MANISH AJMERA ( HUF ) V. DCIT IN ITA.NO. 7369/ MUM/2019 A.Y. 2012 - 13 DATED 09.06.2021 25 ITA NOS. 7366, 7367, 7368, 7370 & 7371/MUM/2019 KISHORE H. AJMERA (HUF) & OTHERS (IV) ASHISH AJMERA ( HUF ) V. DCIT IN ITA.NO. 7396/MUM/2019 AND ITA.NO. 7397/MUM / 2019 ( A.Y. 2011 - 12 AND A.Y. 2012 - 13 ) DATED 09.06.2021. 19. WE OBSERVE T HAT IN ASSESSEES GROUP CASES NAMELY MANISH AJMERA (HUF) V. DCIT AND ASHISH AJMERA (HUF) V. DCIT IN ITA.NO S . 7369/MUM/2019, 7396/MUM/2019 AND 7397/MUM/2019 DATED 09.06.2021 THE TR IBUNAL DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE OBSERVING AS UNDER: - 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS. WE FIND THAT IN THESE CASES THE ASSESSING OFFICER HAS IN HIS AS SESSMENT ORDER NOTED THAT ASSESSEE DID NOT FILE THE OBJECTION TO THE REOPENING. HOWEVER LEARNED CIT(A) IN HIS ORDER HAS NOTED THIS ASPECT. HE HAS ALSO REPRODUCED ONE OF THE LETTERS BY THE ASSESSEE TO THE ASSESSING OFFICER WHEREIN OBJECTIONS TO REOPENING WE RE DULY RAISED. 5. HOWEVER LEARNED CIT(A) IS OF THE OPINION THAT HONOURABLE SUPREME COURT DECISION IN GKN DRIVESHAFT DOES NOT HOLD THAT THE REASSESSMENT WILL BE BAD IF OBJECTION ARE NOT DISPOSED OF. IN THIS REGARD, ON THIS PREMISE HE HAS REJECTED THE ASSES SEES CONTENTION THAT ASSESSMENT IS BAD IN AS MUCH AS OBJECTIONS TO REOPENING HAVE NOT BEEN DISPOSED OFF. HOWEVER WE NOTE THAT THE ABOVE VIEW OF THE LEARNED CIT APPEALS IS NOT IN ACCORDANCE WITH HONOURABLE BOMBAY HIGH COURT DECISION IN THE CASE OF FOMENT O RESORTS & HOTELS LTD. (SUPRA) DEALT WITH IN THE ABOVE SAID ORDER OF THE ITAT. IT IS SETTLED LAW THE ORDER OF HONOURABLE JURISDICTIONAL HIGH COURT IS BINDING UPON THE SUBORDINATE COURTS AND TRIBUNALS. WE FIND THAT LEARNED CIT APPEALS HAS ERRED NOT FOLLOWI NG THE BINDING ORDER OF HONOURABLE JURISDICTIONAL HIGH COURT AND INSTEAD OF REFERRING TO A DELHI HIGH COURT DECISION IN THIS REGARD. 6. ACCORDINGLY IT IS CLEAR THAT THE ASSESSING OFFICER IS WRONG IN OBSERVING THAT ASSESSEE HAS NOT FILED OBJECTION TO REOPEN ING. THE OBJECTION TO REOPENING WAS INTIMATED TO ASSESSING OFFICER AND THE OBJECTIONS HAVE NOT BEEN DISPOSED OFF. THIS, AS PER THE RATIO OF HON'BLE JURISDICTIONAL HIGH COURT DECISION AS REFERRED ABOVE IS FATAL TO THE ASSESSMENT. HENCE, WE SET ASIDE THE ORD ERS OF AUTHORITIES BELOW AND DECIDE T HE ISSUE IN FAVOUR OF ASSESSEE. 7. SINCE WE ARE HOLDING THAT REOPENING IS NOT VALID ADJUDICATION ON MERITS IS ONLY OF ACADEMIC INTEREST AND HENCE WE ARE NOT ENGAGING TO THE SAME. 26 ITA NOS. 7366, 7367, 7368, 7370 & 7371/MUM/2019 KISHORE H. AJMERA (HUF) & OTHERS 20. LD.DR HEAVILY PLACED RELIANCE ON THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF MOHAMMEDALLY NOORBHOY BANDUKWALA TRUST V. I NCOME TAX OFFICER (EXEMPTION ) 2(1) IN W.P. NO. 90 OF 2017 DATED 09.02.2017 AND SUBMITTED THAT EVEN ASSUMING THAT THE ASSESSEE FILED OBJECTION FOR REOPENING OF ASSESSMENT BY LETTER DATED 28.07.2016 THERE IS UNDUE DELAY ON PA RT OF THE ASSESSEE IN FILING SUCH OBJECTION FOR REOPENING ASSESSMENT . LD. DR SUBMITS THAT IN VIEW OF THE DECISION OF THE HON'BLE BOMBAY HIGH COURT WHERE THERE I S UNDUE DELAY ON THE PART OF THE ASSESSEE IN FILING OBJECTION S TO THE REASONS /REOPENING, THE ASSESSMENT CANNOT BE VITIATED FOR NON - DISPOSAL OF OBJECTIONS. 21. WE HAVE PERUSED THE JUDGEMENT OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF MOHAMMEDALLY NOORBHOY BANDUKWALA TRUST V. I TO (SUPRA) AND NOT ED THAT THE NOTICE FOR REOPENING OF ASSESSMENT WAS ISSUED ON 30.03.2016 , THE REASONS FOR REOPENING OF ASSESSMENT WAS SERVED ON THE ASSESSEE ON 14.10.2016. HOWEVER, THE ASSESSEE FILED OBJECTIONS TO THE REASONS FOR REOP ENING ONLY ON 19.12.2016 JUST 10 DAYS BEFORE THE ASSESSMENT WAS GETTING TIME BARRED ON 31.12.2016. IN THESE CIRCUMSTANCES, THE HON'BLE BOMBAY HIGH COURT HELD THAT THERE IS UNDUE DELAY ON THE PART OF THE ASSESSEE IN OBJECTING TO THE REASONS AND THEREFORE IT MA DE IMPOSSIBLE TO GI VE TIME TO THE ASSESSEE SO AS TO APPLY THE RATIO OF 27 ITA NOS. 7366, 7367, 7368, 7370 & 7371/MUM/2019 KISHORE H. AJMERA (HUF) & OTHERS THE DECISION S IN THE CASE OF ASIAN PAINTS LTD., AND ARONI COMMERCIAL LTD., BEFORE PASSING THE RE - ASSESSMENT ORDER U/S. 1 43(3) R.W.S. 147 OF THE ACT ON 28.12.2016 . 22. THE FACTS IN THE CASE OF THE ASSESSEE ARE, REASONS FOR REOPENING RUNNING INTO EIGHT PAGES WAS PROVIDED BY THE ASSESSING OFFICER TO THE ASSESSEE ON 08.04.2016 AND THE ASSESSEE COULD FILE ITS EXHAUSTIVE OBJECTI ONS RUNNING INTO TWELVE PAGES ON 28.07.2016 AND T HE ASSESSMENTS WERE GETTING TIME BARRE D ON 31.12.2016 . THEREFORE, IT IS EVIDENT THAT THERE WAS FIVE MONTHS TIME AVAILABLE FOR COMPLETION OF RE - ASSESSMENT BY THE ASSESSING OFFICER . THE ASSESSING OFFICER ALSO HAD SUFFICIENT TIME I.E., FIVE MONTHS TO DISPOSE OFF THE OBJECTIONS FILED BY THE ASSESSEE . HOWEVER, THE ASSESSING OFFICER W ITHOUT DISPOSING OFF THE OBJECTIONS COMPLETED THE RE - ASSESSMENT ON 28.09.2016 U/S. 143 ( 3 ) R.W.S. 1 47 OF THE ACT , EVEN THOUGH THE ASSESSMENT WAS GETTING TIME BARRED ON 31.12.2016. IN VIEW OF TH ESE FACTS THE RATIO OF THE JUDGEMENT RELIED ON BY THE LD. DR IN THE CASE OF MOHAMMEDALLY NOORBHOY BANDUKWALA TRUST V. ITO (SUPRA) IS CLEARLY DISTINGUISHABLE ON FACTS AND HAS NO APPLICATION TO THE CASE OF THE ASSESSEE . 28 ITA NOS. 7366, 7367, 7368, 7370 & 7371/MUM/2019 KISHORE H. AJMERA (HUF) & OTHERS 23. F URTHER, T HE RELIANCE PLACED BY THE LD.DR ON THE DECISION OF THE HON'BLE MADRAS HIGH COURT IN THE CASE OF HO ME F INDERS H OUSING L TD., V. I T O [ ( 2018 ) 93 TAXMANN.COM 371] FOR THE PRO POSITION TH AT NON - COMPLIANCE OF PROCEDURE INDICATED BY HON'BLE SUPREME COURT IN THE CASE OF GKN D RIVESHAFTS ( I N DIA ) L TD., V. I T O (SUPRA) WOULD NOT MAKE ASSESSMENT ORDER VOID OR NONEST AND SUCH A VIOLATION IS ONLY PROCEDURAL IRREGULARITY WHICH COULD BE CURED BY REMITTING THE MATTER TO THE AUTHORITY, C ANNOT BE FOLLOWED IN VIEW OF SEVERAL BINDING DECISION S OF THE HON'BLE BOMBAY HIGH COURT WHEREIN IT HAS BEEN CATEGORICALLY HELD THAT WITH OUT FIRST DISPOSING OFF THE ASSESSEE S OBJECTIONS TO THE REASONS BY PASSING A SPEAKING ORDER THE ASSESSING OFFICER HAS NO JURISDICTION IN REOPENING THE ASSESSMENT . 24. W E ALSO OBSERVED THAT SUBSEQUENTLY HON'BLE MADRAS HIGH COURT IN THE CASE OF CIT V. P ENTAFOUR SOFTWARE E MPLOYEES W E LFARE F OUNDATION [ ( 2019 ) 418 ITR 427] HAS HELD IN FAVOUR OF THE ASSESSEE ON T HIS VERY ASPECT WHILE D ISMISSING THE REVENUE S APPEAL OBSERVING AS UNDER: 36. IN OUR CONSIDERED VIEW, THE DECISIO N ARRIVED AT IN THE CASE OF JAYANTHI NARAYANAN (SUPRA) REFLEXES THE CORRECT POSITION OF LAW BECAUSE, THE PROCEDURE CARVED OUT BY THE HON'BLE SUPREME COURT IN GKN DRIVESHAFTS (INDIA) LTD. (SUPRA) NOT ONLY BINDS THE ASSESSEE, BUT ALSO THE REVENUE. FILING OF OBJECTIONS TO THE REASONS FOR REOPENING IS NOT AN EMPTY FORMALITY. IF THIS IS SO, PASSING A SPEAKING ORDER ON THE OBJECTIONS CANNOT BE TREATED AS AN EMPTY FORMALITY AND TO BE BRUSHED ASIDE AS A PROCEDURAL ERROR. THE PURPOSE FOR PASSING A SPEAKING ORDER ON THE OBJECTIONS IS TO AFFORD AN OPPORTUNITY TO THE ASSESSEE TO QUESTION THE SAME, IN THE EVENT THE ASSESSEE IS AGGRIEVED BY SUCH AN ORDER. THEREFORE, TO STATE THAT IT WOULD 29 ITA NOS. 7366, 7367, 7368, 7370 & 7371/MUM/2019 KISHORE H. AJMERA (HUF) & OTHERS BE SUFFICIENT FOR THE ASSESSING OFFICER TO DEAL WITH THE OBJECTIONS IN THE ASSESSMEN T ORDER AND THEREAFTER, IF THE ASSESSEE IS AGGRIEVED, HE CAN FILE A STATUTORY APPEAL, IS A PROPOSITION WHICH WOULD BE AGAINST THE PRINCIPLES OF NATURAL JUSTICE. THEREFORE, IF AN ORDER VIOLATES THE LAW LAID DOWN BY THE HON'BLE SUPREME COURT, THEN IT HAS TO BE NECESSARILY HELD TO BE AN ORDER WITHOUT JURISDICTION. THE LAW DECLARED BY THE HON'BLE APEX COURT IS A BINDING CHARACTER AND IS A SOURCE OF LAW AND TO ITSELF WHICH WILL BIND ALL AUTHORITIES . 37. 38. 39. THE HON'BLE SUPREME COURT IN GKN DRIVESHAFTS (INDIA) LTD. (SUPRA) HAD CLARIFIED THAT WHEN A NOTICE UNDER SECTION 148 OF THE ACT IS ISSUED, THE PROPER COURSE OF ACTION FOR THE NOTICEE IS TO FILE A RETURN AN D IF HE SO DESIRES, TO SEEK FOR REASONS FOR ISSUING SUCH NOTICE. FURTHER, IT WAS HELD THAT THE ASSESSING OFFICER IS BOUND TO FURNISH REASONS WITHIN A REASONABLE TIME, ON RECEIPT OF THE REASONS, THE NOT ICEE IS ENTITLED TO FILE OBJECTIONS AND THE ASSESSING OFFICER IS BOUND TO DISPOSE OF THE SAME BY PASSING A SPEAKING ORDER . 40. WE DO NOT AGREE WITH THE INTERPRETATION CANVASSED BEFORE US THAT ASSUMING OBJECTIONS WERE NOT DISPOSED OF BY A SPEAKING ORDER, I T WOULD BE ONLY A PROCEDURAL ERROR. 41. WE HAVE REFERRED TO KELVINATOR OF INDIA LTD. (SUPRA), WHICH HAS POINTED OUT AS TO HOW SERIOUS IS REOPENING OF A CONCLUDED ASSESSMENT, THAT TOO, AFTER FOUR YEARS. THE HON'BLE SUPREME COURT HAS LAID DOWN THE LAW AND IT HAS BEEN MADE MANDATORY FOR THE ASSESSING OFFICER TO PASS A SPEAKING ORDER. THE USE OF THE WORD BOUND CANNOT BE RENDERED MEANINGLESS. THEREFORE, WE ARE OF THE CLEAR VIEW THAT IF THERE HAS BEEN A PROCEDURAL ERROR, IT GOES TO THE ROOT OF THE MATTER THEREBY AFFECTING THE JURISDICTION OF THE ASSESSING OFFICER TO PROCEED FURTHER TO GIVE A FRESH INNINGS TO THE ASSESSING OFFICER ON THE GROUND THAT IT IS A PROCEDURAL ERROR, WILL NOT ONLY DILUTE THE DECISION OF THE HON'BLE SUPREME COURT IN GKN DRIVESHAFTS (INDIA) LTD. (SUPRA), BUT WOULD LEAD TO ABUSE OF POWER CONFERRED UNDER SECTION 147 OF THE ACT, WHICH HAD BEEN POINTED OUT IN KELVINATOR OF INDIA LTD. SUPR A) THEREFORE, THIS WOULD BE THE ONE MORE REASON TO HOLD THAT THE REOPENING OF ASSESSMENTS ARE BAD. 25. I N VIEW OF WHAT IS DISCUSSED ABOVE AND I N THE CASE ON HAND BEFORE US SINCE ASSESSING OFFICER FAILED TO DISPOSE OFF THE PRELIMINARY OBJECTIONS OF THE ASSESSEE BY WAY OF A SEPARATE ORDER, RESPECTFULLY FOLLOWING THE 30 ITA NOS. 7366, 7367, 7368, 7370 & 7371/MUM/2019 KISHORE H. AJMERA (HUF) & OTHERS DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF FOMENTO RESORTS & HOTELS LTD. V. ACIT (SUPRA), W E QUASH THE RE - ASSESSMENT ORDER PASSED U/S. 143 (3) R.W.S. 147 OF THE ACT FOR THE A.Y. 2011 - 12. THE PRELIMINARY GROUND RAISED BY THE ASSESSEE IS ALLOWED. 26. A S WE HAVE ALLOWED PRELIMINARY GROUND RAISED BY THE ASSESSEE WE ARE NOT INCLINED TO GO INTO OTHER GROUNDS AND VARIOUS CONTENTIONS RAISED BY THE ASSESSEE ON MERITS AS IT WOULD RENDER ONLY AN ACA DEMIC EXERCISE . ITA.NO. 7371/MUM/2019 (A.Y. 2012 - 13) 27. THE PRELIMINARY GROUND RAISED BY THE ASSESSEE IN THIS APPEAL IS IN RESPECT OF REASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER IS BAD, ILLEGAL AND WITHOUT JURISDICTION . THE FACTS FOR THE A.Y. 2012 - 13 ARE IDENTICAL TO THE FACTS IN THE A.Y. 2011 - 12 AND THE DECISION TAKEN THEREIN SHALL APPLY MUTATIS - MUTA NDIS TO THE APPEAL FOR THE A.Y. 2012 - 13. WE ORDER AC CORDINGLY. 28. A S WE HAVE ALLOWED PRELIMINARY GROUND RAISED BY THE ASSESSEE WE ARE NOT INCLINED TO GO INTO OTHER GROUNDS AND VARIOUS CONTENTIONS RAISED BY THE ASSESSEE ON MERITS AS IT WOULD RENDER ONLY AN ACADEMIC EXERCISE. 31 ITA NOS. 7366, 7367, 7368, 7370 & 7371/MUM/2019 KISHORE H. AJMERA (HUF) & OTHERS ITA.NO. 7366 /MUM/2019 ( A.Y. 2012 - 13 ) ( JITE N K. AJMERA ( HUF ) 29. WE NOTICED THAT IDENTICAL ISSUE HAS COME UP IN ASSESSEES OWN CASE FOR THE A.Y. 2011 - 12 AND TRIBUNAL IN ITA.NO. 4999/MUM/2018 BY ORDER DATED 08.12.2020 QUASHED THE RE - ASSESSMENT ORDER OBSERVING AS UNDER: 10. IN THE CASE OF FOMENTO RESORTS & HOTELS LTD., V. ACIT (SUPRA) (SUPRA) THE HON'BLE BOMBAY HIGH COURT HELD AS UNDER: 13. IN THE PRESENT CASE, THE APPELLANTS DID LODGE THEIR OBJECTIONS VIDE LETTER DATED 14TH APRIL, 2003. BY A FURTHER LETTER DATED 25TH MARCH, 2004, THE APPELLANTS REQUESTED THE ASSESSING OFFICER TO DISPOSE OF SUCH OBJECTIONS BY PASSING A SPEAKI NG ORDER BEFORE PROCEEDING WITH THE REASSESSMENT IN RESPECT OF THE ASSESSMENT YEAR 1997 - 98. HOWEVER, THE ASSESSING OFFICER, WITHOUT PROCEEDING TO DISPOSE OF THE OBJECTIONS RAISED BY THE APPELLANTS BY PASSING A SPEAKING ORDER, STRAIGHT AWAY PROCEEDED TO MAK E THE ASSESSMENT ORDER DATED 26TH MARCH, 2004, BRINGING TO CHARGE TAXABLE EXPENDITURE ON 10,22,73,987/ - . THE ASSESSMENT ORDER DATED 26TH MARCH, 2004, NO DOUBT, DEALS WITH THE OBJECTIONS RAISED BY THE APPELLANT AND PURPORTS TO DISPOSE OF THE SAME. MS. LINH ARES CONTENDS THAT THIS IS A SUFFICIENT COMPLIANCE WITH THE PROCEDURE SET OUT IN GKN DRIVESHAFTS (INDIA) LTD. (SUPRA), ASSUMING THAT THE SAME IS AT ALL APPLICABLE TO THE PROCEEDINGS UNDER THE SAID ACT. MR. DADA, HOWEVER, SUBMITS THAT SUCH DISPOSAL IN THE A SSESSMENT ORDER ITSELF DOES NOT CONSTITUTE THE COMPLIANCE WITH THE MANDATORY CONDITIONS PRESCRIBED BY THE HONBLE SUPREME COURT IN GKN DRIVESHAFTS (INDIA) LTD. (SUPRA). IN SUPPORT, AS NOTED EARLIER, MR. DADA RELIES UPON BAYER MATERIAL SCIENCE (P) LTD. (SUP RA) AND KSS PETRON PRIVATE LTD. (SUPRA). 14. THE CONTENTION OF MS. LINHARES THAT THE DECISIONS RELIED UPON BY MR. DADA RELATE TO THE PROVISIONS OF THE INCOME TAX ACT AND, THEREFORE, ARE NOT APPLICABLE TO THE PROCEEDINGS UNDER THE EXPENDITURE TAX ACT, CANNO T BE ACCEPTED. IN THE FIRST PLACE, THE PROVISIONS RELATING TO REOPENING OF ASSESSMENT ARE ALMOST PARI MATERIA. SECONDLY, IN SO FAR AS ASSESSMENT YEAR 1995 - 96 IS CONCERNED, THE RESPONDENT APPLIED THE VERY SAME RULING IN GKN DRIVESHAFTS (INDIA) LTD. (SUPRA) TO HOLD THAT THE NOTICE OF REOPENING OF ASSESSMENT WAS ULTRA VIRES SECTION 11 OF THE SAID ACT. THIS VIEW, IN THE SPECIFIC CONTEXT OF THE SAID ACT AND INCIDENTALLY IN THE SPECIFIC CONTEXT OF THIS VERY APPELLANT, WAS UPHELD NOT ONLY BY THIS COURT, BUT ALSO B Y THE HONBLE SUPREME COURT. THIS WAS IN ETA NO.1 AND 5/PANJ/01 DECIDED BY THE TRIBUNAL ON 4.4.2006. 32 ITA NOS. 7366, 7367, 7368, 7370 & 7371/MUM/2019 KISHORE H. AJMERA (HUF) & OTHERS 15. THE AFORESAID DECISION OF THE ITAT WAS APPEALED BY THE RESPONDENT VIDE TAX APPEAL NO.71/2006. THIS APPEAL WAS DISMISSED BY THIS COURT VIDE ORDER DATED 27TH N OVEMBER, 2006, WHICH READS THUS : HEARD THE LEARNED COUNSEL ON BEHALF OF THE PARTIES. THIS APPEAL IS FILED AGAINST THE ORDER DATED 4 - 4 - 2006 OF THE ITAT WHEREIN IN PARA 7 THE LEARNED ITAT HAS COME TO THE CONCLUSION THAT THE ASSESSING OFFICER IS REQ UIRED TO GIVE REASONS, WHEN ASKED FOR BY THE ASSESSEE. GIVING OF REASONS HAS GOT TO BE CONSIDERED AS IMPLICIT IN SECTION 11 OF THE EXPENDITURE TAX ACT, 1987. IT IS NOW WELL SETTLED THAT GIVING REASONS IN SUPPORT OF AN ORDER IS PART OF COMPLYING WITH THE PR INCIPLES OF NATURAL JUSTICE. IN THE LIGHT OF THAT, NO FAULT COULD BE FOUND WITH THE ORDER OF THE LEARNED ITAT AND AS SUCH NO SUBSTANTIAL QUESTION OF LAW ARISES AS WELL. APPEAL DISMISSED. 16. THE RESPONDENT, INSTITUTED A SPECIAL LEAVE TO APPEAL (CIVIL) NO .5711/2007 WHICH WAS, HOWEVER, DISMISSED BY THE HONBLE APEX COURT VIDE ORDER DATED 16/7/2007, BY OBSERVING THAT THERE WERE NO MERITS. 17. ACCORDINGLY, FOR THE AFORESAID REASONS, WE ARE UNABLE TO ACCEPT MS. LINHARESS CONTENTION BASED UPON THE ANY ALLEGED VARIANCE BETWEEN THE PROVISIONS OF THE SAID ACT AND THE PROVISIONS OF THE INCOME TAX ACT, IN SO FAR AS APPLICABILITY OF THE PRINCIPLES IN GKN DRIVESHAFTS (INDIA) LTD. (SUPRA) IS CONCERNED. 18. THE MOOT QUESTION IS, THEREFORE, THE DISPOSAL OF THE OBJECTIONS BY THE ASSESSING OFFICER IN HIS ASSESSMENT ORDER DATED 26TH MARCH, 2004 CONSTITUTES SUFFICIENT COMPLIANCE WITH THE PROCEDURE PRESCRIBED BY THE HONBLE SUPREME COURT IN THE CASE OF GKN DRIVESHAFTS (INDIA) LTD. (SUPRA) OR, WHETHER IT WAS NECESSARY FOR THE A SSESSING OFFICER TO HAVE FIRST DISPOSED OF THE APPELLANTS OBJECTIONS BY PASSING A SPEAKING ORDER AND ONLY UPON COMMUNICATION OF THE SAME TO THE APPELLANTS, PROCEEDED TO REOPEN THE ASSESSMENT FOR THE ASSESSMENT YEAR 1997 - 98. 19. VIRTUALLY, AN IDENTICAL IS SUE AROSE IN THE CASES OF BAYER MATERIAL SCIENCE (P) LTD. (SUPRA) AND KSS PETRON PRIVATE LTD. (SUPRA) BEFORE THE DIVISION BENCHES OF OUR HIGH COURT AT BOMBAY. 20. IN BAYER MATERIAL SCIENCE (P) LTD. (SUPRA), BY A NOTICE DATED 6/2/2013, THE REVENUE SOUGHT T O REOPEN THE ASSESSMENT IN THE YEAR 2007 - 08. THE ASSESSEE FILED A REVISED RETURN OF INCOME AND SOUGHT FOR REASONS RECORDED IN SUPPORT OF THE NOTICE DATED 6.2.2013. THE REASONS WERE FURNISHED ONLY ON 19.3.2015. THE ASSESSEE LODGED OBJECTIONS TO THE REASONS ON 25TH MARCH, 2015. THE ASSESSING OFFICER, WITHOUT DISPOSING OF THE PETITIONERS OBJECTIONS, MADE A DRAFT ASSESSMENT ORDER DATED 30TH MARCH, 2015, SINCE THIS WAS A MATTER INVOLVING TRANSFER PRICING. IN SUCH 33 ITA NOS. 7366, 7367, 7368, 7370 & 7371/MUM/2019 KISHORE H. AJMERA (HUF) & OTHERS CIRCUMSTANCES, THE DIVISION BENCH OF THIS COURT, SET ASIDE THE ASSESSMENT ORDER BY OBSERVING THAT THE COURT WAS UNABLE TO UNDERSTAND HOW THE ASSESSING OFFICER COULD, AT ALL, EXERCISE THE JURISDICTION AND ENTER UPON AN INQUIRY ON THE REOPENING NOTICE BEFORE DISPOSING OF THE OBJECTIONS ON THE REASONS FURN ISHED TO THE ASSESSEE. THIS COURT HELD THAT THE PROCEEDINGS INITIATED BY THE TRANSFER PRICING OFFICER (TPO), ON THE BASIS OF SUCH A DRAFT ASSESSMENT ORDER, WERE WITHOUT JURISDICTION AND QUASHED THE SAME. 21. SIMILARLY, IN THE CASE OF KSS PETRON PRIVATE LT D. (SUPRA), THIS COURT WAS CONCERNED WITH THE FOLLOWING SUBSTANTIAL QUESTION OF LAW : WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE TRIBUNAL WAS JUSTIFIED IN RESTORING THE ISSUE TO THE ASSESSING OFFICER AFTER HAVING QUASHED/SET ASIDE THE ORDER DATED 14TH DECEMBER, 2009 PASSED BY THE ASSESSING OFFICER WITHOUT HAVING DISPOSED OF THE OBJECTIONS FILED BY THE APPELLANT TO THE REASONS RECORDED IN SUPPORT OF THE REOPENING NOTICE DATED 28TH MARCH, 2008 ? 22. IN THE AFORESAID CASE, THE ASSESSI NG OFFICER HAD PURPORTED TO DISPOSE OF THE OBJECTIONS TO THE REASONS IN THE ASSESSMENT ORDER, CONSEQUENT UPON REOPENING OF THE ASSESSMENT. THIS COURT, HOWEVER, HELD THAT THE PROCEEDINGS FOR REOPENING OF ASSESSMENT PRIOR TO DISPOSING OF THE ASESSEES OBJECT IONS BY PASSING A SPEAKING ORDER, WAS AN EXERCISE IN EXCESS OF JURISDICTION. 23. KSS PETRON PRIVATE LTD. (SUPRA), THIS IS WHAT THE DIVISION BENCH HAS OBSERVED AT PARAGRAPHS 7 AND 8 OF THE JUDGMENT : 7. ON FURTHER APPEAL, THE TRIBUNAL PASSED THE IMPUGNED O RDER. BY THE IMPUGNED ORDER IT HELD THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN FINALIZING THE ASSESSMENT, WITHOUT HAVING FIRST DISPOSED OF THE OBJECTIONS OF THE APPELLANT. THIS IMPUGNED ORDER HOLDS THE ASSESSING OFFICER IS OBLIGED TO DO IN TERMS OF TH E APEX COURT'S DECISION IN GKN DRIVESHAFTS (INDIA) LTD., V/S. ITO 259 ITR 19. IN THE AFORESAID CIRCUMSTANCES, THE ORDER OF THE CIT(A) AND THE ASSESSING OFFICER WERE QUASHED AND SET ASIDE. HOWEVER, AFTER HAVING SET ASIDE THE ORDERS, IT RESTORED THE ASSESSME NT TO THE ASSESSING OFFICER TO PASS FRESH ORDER AFTER DISPOSING OF THE OBJECTIONS TO REOPENING NOTICE DATED 28TH MARCH, 2008, IN ACCORDANCE WITH LAW. 8. WE NOTE THAT ONCE THE IMPUGNED ORDER FINDS THE ASSESSMENT ORDER IS WITHOUT JURISDICTION AS THE LAW LAID DOWN BY THE APEX COURT IN GKN DRIVESHAFTS (SUPRA) HAS NOT BEEN FOLLOWED, THEN THERE IS NO REASON TO RESTORE THE ISSUE TO THE ASSESSING OFFICER TO PASS A FURTHER/FRESH ORDER. IF THIS IS PERMITTED, IT WOULD GIVE A LICENCE TO THE ASSESSING OFFICER 34 ITA NOS. 7366, 7367, 7368, 7370 & 7371/MUM/2019 KISHORE H. AJMERA (HUF) & OTHERS TO PASS OR DERS ON REOPENING NOTICE, WITHOUT JURISDICTION (WITHOUT COMPLIANCE OF THE LAW IN ACCORDANCE WITH THE PROCEDURE), YET THE ONLY CONSEQUENCE, WOULD BE THAT IN APPEAL, IT WOULD BE RESTORED TO THE ASSESSING OFFICER FOR FRESH ADJUDICATION AFTER FOLLOWING THE DUE PROCEDURE. THIS WOULD LEAD TO UNNECESSARY HARASSMENT OF THE ASSESSEE BY REVIVING STALE/ OLD MATTERS. 24. ACCORDING TO US, THE RULINGS IN BAYER MATERIAL SCIENCE (P) LTD. (SUPRA) AND KSS PETRON PRIVATE LTD. (SUPRA) AFFORD A COMPLETE ANSWER TO THE CONTENTIO NS RAISED BY MS. LINHARES IN DEFENCE OF THE IMPUGNED ORDER. 25. SINCE, IN THE PRESENT CASE, THE ASSESSING OFFICER HAS PURPORTED TO ASSUME THE JURISDICTION FOR REOPENING OF THE ASSESSMENT, WITHOUT HAVING FIRST DISPOSED OF THE ASSESSEES OBJECTIONS TO THE R EASONS BY PASSING A SPEAKING ORDER, FOLLOWING THE LAW LAID DOWN IN GKN DRIVESHAFTS (INDIA) LTD. (SUPRA), BAYER MATERIAL SCIENCE (P) LTD. (SUPRA) AND KSS PETRON PRIVATE LTD. (SUPRA), WE ARE CONSTRAINED TO HOLD THAT SUCH ASSUMPTION OF JURISDICTION BY THE ASS ESSING OFFICER WAS ULTRA VIRES SECTION 11 OF THE SAID ACT. THE FIRST SUBSTANTIAL QUESTION OF LAW WILL, ACCORDINGLY, HAVE TO BE ANSWERED IN FAVOUR OF THE APPELLANT AND AGAINST THE RESPONDENT - REVENUE. 11. AS COULD BE SEEN FROM THE ABOVE DECISION OF THE HON' BLE BOMBAY HIGH COURT EVEN IF ASSESSING OFFICER DISPOSED OFF THE OBJECTIONS RAISED BY THE ASSESSEE IN THE ASSESSMENT ORDER WHILE COMPLETING THE RE - ASSESSMENT THAT IS NOT IN COMPLIANCE WITH THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF GKN DRIVES HAFTS (INDIA) LTD., (SUPRA) IN OTHER WORDS THE ASSESSING OFFICER SHALL PASS A SEPARATE SPEAKING ORDER DISPOSING OFF THE PRELIMINARY OBJECTIONS RAISED BY THE ASSESSEE IN REOPENING THE ASSESSMENT. IN THE CASE ON HAND BEFORE US SINCE ASSESSING OFFICER FAILED TO DISPOSE OFF THE PRELIMINARY OBJECTIONS OF THE ASSESSEE BY WAY OF A SEPARATE ORDER, RESPECTFULLY FOLLOWING THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF FOMENTO RESORTS & HOTELS LTD. V. ACIT (SUPRA), WE QUASH THE RE - ASSESSMENT ORDER PASSE D U/S. 143(3) R.W.S. 147 OF THE ACT FOR THE A.Y. 2011 - 12. THE PRELIMINARY GROUND RAISED BY THE ASSESSEE IS ALLOWED. 12. AS WE HAVE ALLOWED PRELIMINARY GROUND RAISED BY THE ASSESSEE WE ARE NOT INCLINED TO GO INTO OTHER GROUNDS AND VARIOUS CONTENTIONS RAISE D BY THE ASSESSEE ON MERITS AS IT WOULD RENDER ONLY AN ACADEMIC EXERCISE. 30. FACTS BEING IDENTICAL , RESPECTFULLY FOLLOWING THE SAID DECISION WE QUASH THE RE - ASSESSMENT ORDER PASSED U/S. 143(3) R.W.S. 147 OF THE ACT FOR THE A.Y. 2012 - 13 ALSO. 35 ITA NOS. 7366, 7367, 7368, 7370 & 7371/MUM/2019 KISHORE H. AJMERA (HUF) & OTHERS 31. A S WE HAVE ALLOWE D PRELIMINARY GROUND RAISED BY THE ASSESSEE WE ARE NOT INCLINED TO GO INTO OTHER GROUNDS AND VARIOUS CONTENTIONS RAISED BY THE ASSESSEE ON MERITS AS IT WOULD RENDER ONLY AN ACADEMIC EXERCISE. ITA NOS. 7367 & 7368/MUM/2019 (JASMIN K. A J MERA (HUF) 32. THE FACTS IN THESE TWO APPEALS OF THE ASSESSEE J ASMIN K . A JMERA (HUF) ARE IDENTICAL TO THE FACTS IN THE CASE OF KISHORE H. AJMERA (HUF ) AND JITEN K. AJMERA (HUF) AND THE DECISION TAKEN THEREIN SHALL APPLY MUTATIS - MUTANDIS TO THE APPEALS OF THE ASSESSEE FOR THE ASSESSMENT YEAR S 2011 - 12 AND 2012 - 13. WE ORDER ACCOR DINGLY. 33. A S WE HAVE ALLOWED PRELIMINARY GROUND RAISED BY THE ASSESSEE WE ARE NOT INCLINED TO GO INTO OTHER GROUNDS AND VARIOUS CONTENTIONS RAISED BY THE ASSESSEE ON MERITS AS IT WOULD RENDER ONLY AN ACADEMIC EXERCISE. 34. IN THE RESULT, APPEAL S OF THE ASSESSEE S ARE ALL OWED AS INDICATED ABOVE . ORDER PRONOUNCED ON 06 . 10.2021 AS PER RULE 34(4) OF ITAT RULES BY PLACING THE PRONOUNCEMENT LIST IN THE NOTICE BOARD. SD/ - SD/ - (MANOJ KUMAR AGGARWAL) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI / DATED 06 / 10/2021 GIRIDHAR , S R. PS 36 ITA NOS. 7366, 7367, 7368, 7370 & 7371/MUM/2019 KISHORE H. AJMERA (HUF) & OTHERS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER (ASSTT. REGISTRAR) ITAT, MUM