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

ITA 7369/MUM/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 2012 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-06-2021
• 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: ANOOP
• Keywords: Reopening of assessment; Transfer pricing; Loose papers; Opportunity of being heard; Principle of natural justice; Period of limitation; Question of law; Procedural lapse; Revised return; Reassessment proceedings; Set aside
• Section: 143(3); 143(2); 72; 13; 153; 147; 263

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI SHRI SHAMIM YAHYA (AM) & SHRI AMARJIT SINGH (JM) I.T.A. NO. 7369/MUM/2019 (ASSESSMENT YEAR 2012-13) MANISH K. AJMERA (HUF) 4 TH FLOOR, AJMERA HOUSE PATHAKWADI, L.T. MARG MUMBAI-400 002. PAN : AADHM4708A VS. DCIT, CIRCLE-2(2) ROOM NO. 806 8 TH FLOOR OLD CGO BUILDING M.K. ROAD MUMBAI-400 020. ( APPELLANT ) ( RESPONDENT ) I.T.A. NO. 7396/MUM/2019 (ASSESSMENT YEAR 2011-12) I.T.A. NO. 7397/MUM/2019 (ASSESSMENT YEAR 2012-13) ASHISH K. AJMERA (HUF) 4 TH FLOOR, AJMERA HOUSE PATHAKWADI, L.T. MARG MUMBAI-400 002. PAN : AAEHA0500K VS. DCIT, CIRCLE-2(2) ROOM NO. 806 8 TH FLOOR OLD CGO BUILDING M.K. ROAD MUMBAI-400 020. ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY SHRI DINKLE HARIYA DEPARTMENT BY SHRI ANOOP DATE OF HEARING 18 .0 5 .2021 DATE OF PRONOUNCEMENT 09.06.2021 O R D E R PER SHAMIM YAHYA (AM) :- THESE ARE APPEALS BY TWO ASSESSEES BELONGING TO THE SAME GROUP AGAINST RESPECTIVE ORDERS OF LEARNED CIT APPEALS. SINCE THE ISSUES ARE COMMON AND CONNECTED AND THE APPEALS WERE HEARD TOGETHER THESE ARE BEING CONSOLIDATED AND DISPOSED OFF TOGETHER FOR THE SAKE OF CONVENIEN CE. 2. SINCE COMMON GROUNDS HAVE BEEN RAISED WE ARE REF ERRING TO GROUNDS OF APPEAL IN ITA NO. 7369/MUM/2019 1. NATURAL JUSTICE MANISH K. AJMERA (HUF) 2 1.1 THE LEARNED COMMISSIONER OF INCOME-TAX (APP EALS)-48, MUMBAI ['LD. CIT (A)'] ERRED IN NOT GRANTING PROPER, SUFFICIENT AND ADEQUATE OPPORTUNITY OF BEING HEARD TO THE APPELLANT WHILE FRAMING THE APPELL ATE ORDER. 1.2 IT IS SUBMITTED THAT, IN THE FACTS AND THE CIR CUMSTANCES 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 NA TURAL 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 AC TION OF THE A.O. IN INITIATING REASSESSMENT PROCEEDINGS AND FRAMING THE ASSESSMENT OF THE APPELLANT 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 AP PRECIATE THAT: (I) THE CASE OF THE APPELLANT DID NOT FALL WITH IN 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 CIRC UMSTANCES OF THE CASE, AND IN LAW, THE REASSESSMENT FRAMED IS BAD, ILLEGAL AND VOID. WITHOUT FURTHER PREJUDICE TO THE ABOVE 3.1 THE LD. CIT (A) ERRED IN CONFIRMING THE AD DITION MADE BY THE A.O. OF RS.27,07,327/- U/S. 68 OF THE ACT, ON ACCOUNT OF ALLE GED BOGUS/UNEXPLAINED LONG TERM CAPITAL GAIN. 3.2 WHILE DOING SO, THE LD. CIT (A) ERRED IN: (I) BASING HIS ACTION ON WRONG/ERRONEOUS FACTS . (II) BASING HIS ACTION ONLY ON SURMISES, SUSPI CION AND CONJECTURE; (III) TAKING INTO ACCOUNT IRRELEVANT AND EXTRANEOUS C ONSIDERATIONS; AND (IV) IGNORING RELEVANT MATERIAL AND CONSIDERATIONS AS SUBMITTED BY THE APPELLANT. 3.3 IT IS SUBMITTED THAT IN THE FACTS AND THE CIRC UMSTANCES 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 CO MPUTATION OF THE ADDITION MADE BY THE A.O. IS ARBITRARY, EXCESSIVE AN D NOT IN ACCORDANCE WITH THE LAW. WITHOUT FURTHER PREJUDICE TO THE ABOVE MANISH K. AJMERA (HUF) 3 4.1 THE LD. CIT (A) ERRED IN CONFIRMING THE AD DITION MADE BY THE A.O. OF RS.1,42,135/- U/S. 69 OF THE ACT, ON ACCOUNT OF ALLEG ED ESTIMATED UNEXPLAINED EXPENSES. 4.2 WHILE DOING SO, THE LD. CIT (A) ERRED IN: (I) BASING HIS ACTION ONLY ON SURMISES, SUSPI CION AND CONJECTURE; (II) TAKING INTO ACCOUNT IRRELEVANT AND EXTRANE OUS CONSIDERATIONS; AND (III) IGNORING RELEVANT MATERIAL AND CONSIDERATIO NS AS SUBMITTED BY THE APPELLANT. 4.3 IT IS SUBMITTED THAT IN THE FACTS AND THE CIRC UMSTANCES 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 ADDITION WAS CALLED FOR, IT IS SUBMITTED THAT THE CO MPUTATION OF THE ADDITION MADE BY THE A.O. IS ARBITRARY, EXCESSIVE AN D NOT IN ACCORDANCE WITH THE LAW. LIBERTY 5. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, D ELETE OR MODIFY ALL OR ANY THE ABOVE GROUND AT THE TIME OF HEARING. 3. AT THE OUTSET LEARNED COUNSEL OF THE ASSESSEE ST ATED THAT IN THESE APPEALS THE ASSESSING OFFICER HAS PASSED THE ORDER WITHOUT DISPOSING OF THE ASSESSEE'S OBJECTION TO THE REOPENING. HENCE LEARNE D COUNSEL OF THE ASSESSEE PLEADED THAT THE JURISDICTION OF THE ASSESSING OFFI CER TO MAKE THE ASSESSMENT ARE INVALID. HE SUBMITTED THAT IN ANOTHER ASSESSEE OF THE SAME GROUP ON IDENTICAL CIRCUMSTANCES THIS ITAT HAS SET ASIDE THE ORDERS OF AUTHORITIES BELOW ON THE GROUND OF NON-DISPOSAL OF OBJECTIONS TO REOP ENING FINDING THE SAME TO BE FATAL. IN THIS REGARD LEARNED COUNSEL OF THE ASSESS EE HAS REFERRED TO THE FOLLOWING DECISION OF ITAT IN THE CASE OF MANISH K. AJMERA(HUF) (ITA NO. 5001/MUM/2018 ORDER DATED 8.12.2020), THE ORDER OF THE ITAT IS REPRODUCED AS UNDER :- 3. LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET SUBMITTED THAT THE REASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER IS BAD, ILLEGAL AND WITHOUT JURISDICTION FOR THE REASON THAT THE ASSESSING O FFICER IGNORED THE MANDATORY REQUIREMENT OF DISPOSING OFF OBJECTIONS RAIS ED BY THE ASSESSEE FOR REOPENING THE ASSESSMENT U/S. 147 OF THE ACT. LD. COU NSEL FOR THE ASSESSEE REFERRING TO PARA NO.4 OF THE RE-ASSESSMENT ORDER AT PAGE NO.11,SUBMITTED THAT THE ASSESSING OFFICER STATED THAT ASSESSEE NEVER SU BMITTED ANY MANISH K. AJMERA (HUF) 4 OBJECTIONS AND THEREFORE DISPOSING OFF THE OBJECTIONS DOES NOT ARISE IS CONTRARY TO RECORD. REFERRING TO PAGE NOS. 16 TO 27 OF THE PAPER BOOK LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT IN THE COURSE O F PROCEEDINGS BEFORE THE ASSESSING OFFICER ASSESSEE MADE ELABORATE SUBMISSIO NS AND PRELIMINARY OBJECTIONS ON REOPENING OF ASSESSMENT AND THESE OBJE CTIONS WERE NEVER DISPOSED OFF BY THE ASSESSING OFFICER BEFORE FRAMING THE ASSESSMENT, THEREFORE, RENDERING THE ASSESSMENT ORDER BAD IN LAW. 4. LD. COUNSEL FOR THE ASSESSEE PLACED RELIANCE ON T HE FOLLOWING DECISIONS: - (I) DCIT V. M/S. FIRSTSOURCE 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 HON'BLE S UPREME 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 T HE ASSESSMENT ORDER AS THERE WAS NO SEPARATE ORDER PASSED BY THE ASSESSING O FFICER DEALING WITH THE PRELIMINARY OBJECTIONS FILED BY THE ASSESSEE IN REO PENING THE ASSESSMENT. 5. LD. COUNSEL FOR THE ASSESSEE ALSO PLACED RELIANCE ON THE DECISION OF THE HON'BLE BOMBAY HIGH COURT AT GOA BENCH IN THE CASE OF FOMENTO RESORTS & HOTELS LTD., V. ACIT IN TAX APPEAL NO. 63 OF 2007 D ATED 30.08.2019AND SUBMITTED THAT IT HAS BEEN HELD BY THE HON'BLE BOMBAY H IGH COURT THAT THE ASSESSING OFFICER HAS TO PASS A SEPARATE ORDER DISPO SING OFF THE PRELIMINARY OBJECTIONS AND HE CANNOT DISPOSE OFF THE OBJECTIONS WH ILE PASSING THE ASSESSMENT ORDER ITSELF. 6. ON THE OTHER HAND, LD. DR STRONGLY SUPPORTED THE OR DERS OF THE AUTHORITIES BELOW. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF THE AUTHORITIES BELOW. IN THIS CASE THE ASSESSING OFFICER ISSUED NOTI CE U/S.148 OF THE ACT DATED 25.02.2016 FOR REOPENING OF ASSESSMENT U/S. 1 47 OF THE ACT. ASSESSING OFFICER ALSO ISSUED NOTICE U/S. 143(2) OF THE ACT CAL LING FOR THE DETAILS AND OBJECTIONS. ASSESSEE VIDE LETTER DATED 28.07.2016 SU BMITTED DETAILED PRELIMINARY OBJECTIONS FOR REOPENING OF ASSESSMENT AN D NOT TO PROCEED FURTHER AND THESE OBJECTIONS ARE AS UNDER: - WITH REFERENCE TO YOUR ABOVE NOTICE, WE HAVE TO SUBM IT AS UNDER:- 1.VIDE YOUR NOTICE DATED 16.07.2016 YOU HAVE CALLED UPON US TO EXPLAIN AS TO WHY THE LONG TERM CAPITAL (LTG), GAIN EA RNED BY US NOT BE TAXED. 2.AT THE OUTSET, WE STRONGLY OBJECT TO THE OBSERVATION M ADE BY YOU IN YOUR REASON FOR REOPENING OF ASSESSMENT GIVEN ALONGW ITH NOTICE DATED MANISH K. AJMERA (HUF) 5 08.04.2016 FOR THE FOLLOWING AMONGST OTHER GROUNDS A S MENTIONED HEREIN BELOW. 3.WE SAY THAT OUR ALL TRANSACTIONS EXECUTED ARE GENUI NE, 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 ASSESSME NT IT IS SEEN THAT, YOU HAVE RELIED UPON TWO SO CALLED EVIDENCES TO SUPP ORT THE ALLEGATION, A. THE STATEMENT OF SHRI JASMIN AJMERA TAKEN DURING TH E SEARCH OPERATION AND B. ALLEGED EVIDENCES COLLECTED IN COURSE OF THE SEAR CH PROCEEDING AGAINST ONE SHRI SHIRISH C. SHAH. IN THIS PRELIMINARY SUBMISSION, WE DEAL WITH EACH OF THE TWO ALLEGATIONS AS UNDER: - A. STATEMENT OF SHRI JASMIN AJMERA:- HERE, THE SOLE RELIANCE IS PLACED ON THE FACT THAT IN THE STATEMENT SHRI JASMIN AJMERA HE HAD AGREED TO OFFER THE AMOUNT OF CAP ITAL GAIN FOR TAXATION. IN THIS REGARD, THE FOLLOWING POINTS ARE NOTEWORTHY:- I.FIRST OF ALL, EXCEPT FOR THIS STATEMENT THERE IS ABSO LUTELY NO EVIDENCE IN SUPPORT OF THE ALLEGATION. NO INCRIMINATING DOCUMEN T/ EVIDENCE WERE FOUND DURING THE SEARCH FROM HIS OR OUR PROPER TY. NOW, AS FAR AS THE SOLE RELIANCE ON STATEMENT IS CONCERNED, WE UNDER STAND 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 Q UITE WELL SETTLED IN THIS REGARD AND IT HAS BEEN EMPHATICALLY HELD THAT NO AD DITION CAN BE MADE TO THE INCOME OF AN ASSESSEE, MERELY ON THE BASI S OF A STATEMENT, WITHOUT ANY CORROBORATIVE EVIDENCE FOUND DUR ING THE SEARCH SUPPORTING SUCH ADDITION. II.IN ANY CASE, THE STATEMENT OF SHRI JASMIN AJMERA W AS TAKEN IN COERCION, PRESSURE AND UNDUE INFLUENCE AND GIVEN IN 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 PART Y. FURTHER, THE ENTIRE STATEMENT STOOD FULLY RETRACTED BY SHRI JASMIN AJ MERA IN HIS DETAILED AFFIDAVIT DATED 02/08/2013 AND 14/08/2015, S UBMITTED TO THE DEPARTMENT, SHRI JASMIN AJMERA IN HIS AFFIDAVITS, HAVE VERY EXHAUSTIVELY DEALT WITH THE ENTIRE CHAIN OF EVENTS WHIC H TRANSPIRED DURING THE COURSE OF THE SEARCH, AS WELL AS, HAS ALS O PLACED ON RECORD THE MANNER IN WHICH HE WAS PRESSURIZED, THREATENED AN D ALSO THE CIRCUMSTANCES UNDER WHICH THIS SO CALLED CONFESSION IN THE FORM OF STATEMENT WAS EXTRACTED FROM HIM MANISH K. AJMERA (HUF) 6 III.SHRI JASMIN AJMERA HAS RETRACTED FROM THE STATEME NT/ CONFESSION SO EXTRACTED. WE SAY THAT IN THE GIVEN CIRCUMSTANCES, THE SO CALLED STATEMENT HAS ABSOLUTELY NO EVIDENTIARY VALUE, ON FAC T, AS WELL AS IN LAW. IV.IN ANY CASE, THE STATEMENT OF SHRI JASMIN AJMERA IS NOT BINDINGON US AND WE HAVE NOT CONFESSED ANY SUCH DISCLOSURE, WE SAYTHAT IN THE GIVEN CIRCUMSTANCES, EVEN THIS SO CALLED STATEMENT HA SABSOLUTELY NO EVIDENTIARY VALUE, ON FACT, AS WELL AS IN LAW.IN VIE W OF THE ABOVE, IT IS SUBMITTED THAT YOUR RELIANCE ON THE STATEMENT OF SHRI JAS MIN AJMERA IS NOT VALID, ON FACT, AS WELL AS IN LAW. B. SEARCH PROCEEDING AGAINST SHRI SHIRISH C. SHAH IT APPEARS THAT YOUR OBSERVATION IS ALSO BASED ON THE ALLEGED INFORMATION GATHERED IN COURSE OF SEARCH ACTION AGAINST ONE SHRI SHIRISH C. SHAH. YOUR GOOD OFFICE HAS PROVIDED US DATA COLLECTED BY YOU FR OM BSE LTD. WITH RESPECT TO THE TRANSACTIONS IN THE SHARES OF PRRANETA INDUSTRIE S 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 HARD COPIES OF SOME AFFIDAVITS OF VARIOUS PERSONS, W HO ARE ALLEGED TO BE DIRECTORS OF VARIOUS COMPANIES, AGAIN ALLEGED TO BE M ANAGED BY SHIRISH SHAH. IN THIS REGARD, WE HAVE TO SUBMIT AS UNDER:- 1. DATA PROVIDED OF BSE LTD1. IT APPEARS THAT THIS DATA SH OWS SALE AND PURCHASE TRANSACTIONS OF PRRANETA. 2. OUR PRELIMINARY OBSERVATION ON GOING THROUGH THIS DATA IS AS UNDER: I. IT IS SEEN THAT THE SCRIP WAS ACTIVELY TRADED DURIN G THIS PERIOD. II. IT IS SEEN THAT THERE WERE MULTIPLE BUYERS AND SE LLERS IN THE MARKET. III. IT IS SEEN THAT THERE WAS PARTICIPATION FROM ALL KIND OF CLIENTAL LIKE RETAILS/CORPORATE/INSTITUTIONS. IV. IT IS FURTHER SEEN THAT, IN FACT MANY PARTIES WHO HA D PURCHASED THE SHARES SOLD BY US IN THE MARKET HAD RESOLD IN THE O PEN MARKET. V. PLEASE 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 STATEME NTS ALREADY SUBMITTED BY US IN OUR PREVIOUS SUBMISSIONS. 3. WE FURTHER WOULD LIKE TO DRAW YOUR KIND ATTENTION T HAT, IT IS ALSO A MATTER OF ELEMENTARY KNOWLEDGE THAT IN A SCREEN BASED COMPUT ERIZED TRADING MECHANISM, TRANSACTIONS OF PURCHASE AND SALE OF SHAR ES OF A PARTICULAR COMPANY GETS AUTOMATICALLY CONCLUDED WHEN OFFER OF PUR CHASE OF THE SHARES MANISH K. AJMERA (HUF) 7 AT A PARTICULAR PRICE FOR A PARTICULAR QUANTITY PLACED BY A BROKER ON BEHALF OF A WILLING PURCHASER IS MATCH BY/ACCEPTED BY ANOTHER B ROKER ACTING ON BEHALF OF HOLDER OF THE SHARES WHO ACCEPTS TO SELL AT THAT PRIC E AND OR VIS-E-VERSA. THE IMPORTANT THING IS THAT THE TRANSACTION IS CONCLUDED AUTOMATICALLY THROUGH THE STOCK EXCHANGE MECHANISM ON THE MATCHING PAR AMETERS OF PRICE AND UP TO THAT QUANTITY ONLY WITHOUT ANY DESCRIPTION/CH OICE OF THE SELLING BROKER/BUYING BROKER. IN FACT, THE VERY PURPOSE BEHI ND THIS MECHANISM IS TO BRING TRANSPARENCY AND NOT TO GIVE ANY SUCH DISCRETION , CHOICE TO THE BROKERS/CLIENTS. MOST IMPORTANTLY, NEITHER THE SELLIN G PERSON NOR HIS BROKER IS AWARE ABOUT WHO IS THE ACTUAL PURCHASER OF THE SHARE . AS SUCH, WHEN WE SOLD THE SHARES THROUGH OUR BROKER, WE WERE NOT EVEN A WARE ABOUT THE PERSON PURCHASING THE SHARES MUCH LESS WE HAD NO ME ANS TO KNOW THAT. 4.NONE OF THE REGULATORY AUTHORITIES, LIKE SEBI, BSE, RBI ETC. HAS EVEN SUGGESTED, MUCH LESS HELD, THAT THESE TRANSACTIONS WER E BOGUS. IN OTHER WORDS, THE TRANSACTIONS ARE ACCEPTED TO BE PROPER AND GENUINE BY THE CONCERNED REGULATORY AUTHORITIES, WITHOUT ANY SUCH REG ULATORY AUTHORITIES TAKING ANY ADVERSE VIEW. IN FACT, THE VERY SAME COMP ANY, PRRANETA INDUSTRIES LTD. HAS RECENTLY COME OUT WITH PUBLIC PREFERENTIAL ISSU E OF SHARES, WHICH IS POSSIBLE ONLY AFTER GETTING CLEARANCE OF REGULATORY A UTHORITIES. REFERENCE COPIES ENCLOSED FOR READY REFERENCE. PRRANETA IS RE GISTERED 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 BE ARING ON OUR CASE, AS WE ARE NOT AT ALL CONCERNED WITH THE NAMES OF THE PURCH ASERS, MUCH LESS WE ALSO WOULD NOT HAVE THE KNOWLEDGE AS TO WHY SUCH PERSO N PURCHASED THE SAID SHARES. THEREFORE, IN ANY CASE, WE HAD ABSOLUT ELY NO CONCERN WITH THE ALLEGED GROUP PURCHASING THE SAID SHARES, MUCH LESS THEIR 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 MAN AGED AND OWNED BY SHIRISH SHAH ARE PUBLIC LIMITED LISTED COMPANIES. F OR EXAMPLE, AVANCE TECHNOLOGIES LTD./MAHAN INDUSTRIES LTD. AND FEW MOR E. 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 PRRAN ETA ALLEGED TO HAVE BEEN PURCHASE BY COMPANIES MANAGED AND CONTROLLED BY SHIR ISH C. SHAH ARE MUCH LESSER THAN THE QUANTITIES TRADED IN THE EXCHANGE. II.THE SCANNED DOCUMENTS PROVIDED IN THE PEN DRIVE: - MANISH K. AJMERA (HUF) 8 1.AT THE OUTSET, WE FAIL TO UNDERSTAND THE PURPOSE OF GI VING ME 6000 TO 7000 PAGES OF MATERIAL, IN THE PEN DRIVE FORM, WHICH, AS YOU ARE FULLY AWARE, IS NOT HUMANLY POSSIBLE FOR ANYBODY TO SCAN THROUGH AND VERI FY AND, THAT TOO, IN A SHORT SPAN OF TIME. WE, THEREFORE, HAVE TO REQUEST Y OU TO GIVE COPIES OF ONLY THOSE MATERIAL ON WHICH YOU INTEND TO RELY WHILE FRA MING ASSESSMENTS IN OUR CASE. YOU WILL APPRECIATE THAT IT IS ONLY AFTER KNOWIN G THE EXACT MATERIAL ON WHICH YOU INTEND TO RELY, AND THE REASON THEREOF, THAT ANY REPLY CAN BE FILED BY US IN DEFENCE. OTHERWISE, DUMPING 6000 TO 7000 PA GES, THAT TOO, IN A PEN DRIVE FORM, DOES NOT SERVE ANY PURPOSE. IN ORDER TO P ROVIDE US A PROPER AND FAIR OPPORTUNITY OF BEING HEARD AND TO ENABLE US TO GI VE MEANINGFUL REPLY, FOR OURSELVES, WE HAVE TO REQUEST YOU TO IDENTIFY AND LET U S KNOW THE EXACT PAGES PAPERS/DOCUMENTS WHICH YOU INTEND TO ACTUALLY RELY AN D ALSO LET US KNOW AS TO IN WHAT WAY AND FOR WHAT PURPOSE THEY ARE SOUGHT TO B E SO RELIED UPON. 2.HOWEVER, STRICTLY WITHOUT PREJUDICE TO THE ABOVE AND UNDER PROTEST, WE GIVE OUR VERY PRELIMINARY AND BRIEF OBSERVATIONS, UPON G OING CURSORILY THROUGH THE CONTENTS OF THE PEN DRIVE, HEREIN BELOW: (I) IN ANY CASE, MANY OF THE DOCUMENTS ARE ROUGH NOTINGS/SCRIBBLINGS/CHITS, ETC., WHICH OTHERWISE ALSO H AVE NO EVIDENTIARY VALUE, BEING 'DUMB' DOCUMENTS. (II) WE ARE NOT AWARE WHO HAS PREPARED THESE DATA/DOC UMENTS/CHITS ETC. AND WE WOULD LIKE TO CROSS -EXAMINE THE PERSON AN D/OR THE AUTHOR WHO HAS PREPARED THE DATA, APART FROM THIS BEING A NOR MAL AND ESSENTIAL REQUIREMENT OF THE PRINCIPLE OF NATURAL JUS TICE, AS THE DATA APPEARS TO BE INCORRECT, SO FAR AS THE TRANSACTIONS REL ATING 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. THI S IS, OF COURSE, WITHOUT PREJUDICE TO OUR PRELIMINARY OBJECTION TO LET US KNOW THE PRECISE MATERIAL THAT YOU INTEND TO RELY UPON ULTIMATEL Y AND THE REASON THEREOF SO AS TO ENABLE US TO GIVE MEANINGFUL REPLY THEREON. III. AFFIDAVITS FILED BY THE DIRECTORS OF THE COMPA NIES ALLEGED TO BE MANAGED AND CONTROLLED BYSHIRISH 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 GI VE MEANINGFUL REPLY THEREAFTER. 2. STRICTLY WITHOUT PREJUDICE TO THE ABOVE AND UNDER P ROTEST, OUR PRELIMINARY OBSERVATIONS IN THIS REGARD ARE AS UNDER: MANISH K. AJMERA (HUF) 9 I) FIRST OF ALL, EX-FACIE, THESE AFFIDAVITS DO NOT AT A LL DIRECTLY, INDIRECTLY OR REMOTELY CONCERN US, NOR DO THEY INDICATE INVOLVE MENT OF OURSELVES IN ANY TRANSACTION, MUCH LESS IN ANY DUBIOUS TRANSACT ION. II) BESIDES, OUR FEW OBSERVATIONS REGARDING THE AFFI DAVITS 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 APPEA R TO BE LEGALLY AND VALIDLY EXECUTED DOCUMENT OF OATH. ALL STAMP PAPERS AP PEAR TO BE PURCHASED FROM ONE VENDOR. ALMOST ALL AFFIDAVITS 134 ON OATH ARE NOT ARISED BY ONLY THREE NOTARIES, AND THAT TOO WITHIN FEW D AYS, (81AFFIDAVITS ARE EXECUTED NOTARIZED ON ONE SINGLE DAY ), WHICH IS DIFFICULT TO BELIEVE AS THE DEPONENTS ARE SCATTERED AT D IFFERENT PLACES. EVEN THE FORMAT OF THESE AFFIDAVITS IS NOT AS PER THE OA TH ACT. IT IS NOT PROPERLY VERIFIED, IDENTIFIED OR ADMINISTERED. (C) THE PURPORTED DECLARATIONS ARE NOT OIL PAPER AS R EQUIRED 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 THESE AFFIDAVITS/DECLARATIONS, YOU ARE REQUEST ED 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 CO VER MANY OTHER COMPANIES/INDIVIDUALS, WHO HAVE ALLEGED TO HAVE PUR CHASED SHARES SOLD BY US ON AUTOMATED EXCHANGE PLATFORM. V) PLEASE LET US KNOW WHAT ACTIONS HAVE BEEN TAKEN AGAI NST THE DEPONENTS AS WELL AS THE CONCERNED COMPANIES AS WELL AS AGAINST SHIRISH C. SHAH. FOR EXAMPLE, WHETHER THE INCOME SU PPOSED TO HAVE BEEN RECEIVED BY THEM FROM SHIRISH C. SHAH HAS BEEN DECLARED/ ASSESSED IN THEIR CASE? VI) IN THIS BACKGROUND, THESE LOOSE PAPERS / AFFIDA VITS CANNOT BE CALLED ANY MATERIAL, MUCH LESS COGENT MATERIAL, TO REBUT THE PRELIMINARY PRESUMPTION ABOUT CORRECTNESS OF THE TRANSACTION. PLEASE NOTE THAT SAID SHIRISH C. SHAH WAS NOWHERE CON CERNED WITH OUR TRANSACTIONS OF SALE NOR WAS HE EVER BEEN CONTACTED FO R ANY SUCH TRANSACTIONS. PLEASE PROVIDE US AN OPPORTUNITY OF CROS S-EXAMINING SAID SHIRISH SHAH AND ALL THE INDIVIDUALS ON WHOSE STATEME NTS YOU ARE DEPENDING TO BRING AT CORRECT FACTS ON RECORD. MANISH K. AJMERA (HUF) 10 THE ABOVE ARE OUR PRELIMINARY SUBMISSIONS/OBJECTION S ON THE ISSUE. IF YOU STILL INTEND TO PROCEED FURTHER, WE REQUEST THAT THE SAME BE INTIMATED TO US, ALONG WITH THE REASONS THEREOF, TO ENABLE US TO MAKE F URTHER SUBMISSIONS, ON FACT AS WELL AS IN LAW. NEEDLESS TO SAY THAT, IN THE ME ANWHILE, IF ANY FURTHER INFORMATION/EXPLANATION IS REQUIRED, ON THE PRELIMINA RY ASPECT THE SAME SHALL BE READILY FURNISHED UPON INTIMATION. 8.HOWEVER, THE ASSESSING OFFICER WITHOUT DISPOSING OF F THE PRELIMINARY OBJECTIONS PROCEEDED AND COMPLETED THE ASSESSMENT AN D WHILE COMPLETING THE ASSESSMENT ADVERTED TO THE OBJECTIONS FILED BY THE ASSESSEE. 9.IN THE CASE OF MAHARASHTRA STATE POWER GENERATION C O. LTD., V. ADDL. CIT (SUPRA) THE TRIBUNAL CONSIDERING THE DECISION OF THE H ON'BLE SUPREME COURT IN THE CASE OF GKN DRIVESHAFTS (INDIA) LTD., V. ITO (S UPRA) AND THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF KS S PETRON PVT. LTD., V. ACIT (SUPRA) AND ALSO THE DECISION OF THE COORDINATE BENCH IN THE CASE OF DCIT V. FIRST SOURCE SOLUTIONS LTD (SUPRA) QUASHED THE REASSESSMENT ORDER PASSED U/S. 143(3) R.W.S. 147OF THE ACT. WHILE QUASH ING THE RE-ASSESSMENT ORDER THE COORDINATE BENCH OBSERVED AS UNDER: - 2.1THE LD. AUTHORIZED REPRESENTATIVE FOR ASSESSEE [A R], AT THE OUTSET, SUBMITTED THAT THE OBJECTIONS RAISED BY THE ASSESSEE AGA INST REOPENING THE ASSESSMENT WERE NEVER DISPOSED-OFF BY LD. ASSESSI NG OFFICER AS MANDATED BY THE DECISION OF HONBLE SUPREME COURT I N GKN DRIVESHAFTS (INDIA) LTD. VS. ITO [259 ITR 19] AND THE REFORE, THE REASSESSMENT PROCEEDINGS STOOD VITIATED IN THE EYES O F LAW. RELIANCE HAS BEEN PLACED ON THE DECISION OF JURISDICTIONAL HO NBLE BOMBAY HIGH COURT RENDERED IN KSS PETRON PRIVATE LIMITED VS. 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 ORDE R ON OBJECTIONS RAISED BY THE ASSESSEE. 2.2ON 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 D ID NOT DISPOSE-OFF OBJECTIONS RAISED BY IT IN RESPECT OF RE-OPENING OF TH E ASSESSMENT PROCEEDINGS. ON THIS ISSUE THE APPELLANT HAS RELIED O N VARIOUS CASE- LAWS. I HAVE CONSIDERED THE FACTS OF THE CASE AND DE CISIONS 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 T HE AO TO FIRST DISPOSE-OFF, BY PASSING A SPEAKING ORDER, APPELLANT S OBJECTIONS RAISED AGAINST REOPENING OF THE ASSESSMENT. HOWEVER, THE ASS ESSING OFFICERS ACTION OF NOT DISPOSING OFF APPELLANTS OBJECTIONS WAS A PROCEDURAL IRREGULARITY ONLY WHICH DID NOT AFFECT THE LEGALITY O F 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 AGAINS T RE-OPENING OF THE ASSESSMENT. IN THOSE CASES THE ASSESSMENT ORDER WAS S ET ASIDE TO THE FILE OF THE AO FOR FIRST DISPOSING OFF THE OBJECTIONS BY PASSING A MANISH K. AJMERA (HUF) 11 SPEAKING ORDER AND THEN FRAME ASSESSMENT ORDER. THERE FORE, ON ACCOUNT OF THIS IRREGULARITY, THE ASSESSMENT ORDER P ASSED BY THE AO CANNOT BE HELD TO BE INVALID. AS PER EXISTING PROVISIO NS OF THE ACT, THE UNDERSIGNED HAS NO POWER TO SET ASIDE THE ASSESSMENT O RDER PASSED BY THE AO. THEREFORE, APPELLANTS OBJECTIONS/ARGUMENTS ON THIS ISSUE ARE NOT ACCEPTABLE. IN THE ABOVE BACKGROUND, LD. CIT-DR PLEADED FOR RESTO RATION OF MATTER BACK TO THE FILE OF LD. AO FOR DISPOSAL OF ASSESSEES OBJECTION AGAINST REASSESSMENT PROCEEDINGS. HOWEVER, THE FACT THAT THE ASS ESSEE HAD RAISED OBJECTIONS AGAINST THE REOPENING OF THE ASSESS MENT AND THE SAME WAS NOT DISPOSED-OFF BY LD. AO, REMAIN UNCONTROV ERTED. NOTHING ON RECORD WOULD ESTABLISH THAT THE ASSESSEES OBJECTIO NS AGAINST REOPENING OF ASSESSMENT WERE EVER CONSIDERED AND REJ ECTED BY LD. AO AT ANY POINT OF TIME, DURING REASSESSMENT PROCEEDINGS. 3. AFTER DUE CONSIDERATION OF FACTUAL MATRIX, WE FIND THAT THE BI NDING JUDICIAL PRECEDENT IN THE SHAPE OF CITED DECISION OF HONBLE B OMBAY HIGH COURT SQUARELY APPLIES TO THE FACT OF THE CASE. THE RELEVANT O BSERVATION OF HONBLE COURT, FOR EASE OF REFERENCE, COULD BE EXTRA CTED IN THE FOLLOWING MANNER: - 8.WE NOTE THAT ONCE THE IMPUGNED ORDER FINDS THE ASSES SMENT 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 AFUR THER/FRESH ORDER. IF THIS IS PERMITTED, IT WOULD GIVE A LICENCE TO THE ASS ESSING OFFICER TO PASS ORDERS ON REOPENING NOTICE, WITHOUT JURISDICTIO N (WITHOUT COMPLIANCE OF THE LAW IN ACCORDANCE WITH THE PROCEDUR E), YET THE ONLY CONSEQUENCE, WOULD BE THAT IN APPEAL, IT WOULD BE RE STORED TO THE ASSESSING OFFICER FOR FRESH ADJUDICATION AFTER FOLL OWING THE DUE PROCEDURE. THIS WOULD LEAD TO UNNECESSARY HARASSMEN T OF THE ASSESSEE BY REVIVING STALE/OLD MATTERS. 9.IN FACT, TO ENSURE THAT REOPENING NOTICES ARE DISPO SED OF, EXPEDITIOUSLY THE PARLIAMENT ITSELF HAS PROVIDED IN SECTION 153(2) OF THE ACT A PERIOD OF LIMITATION WITHIN WHICH THE ASSESSI NG OFFICER MUST PASS AN ORDER ON THE NOTICE OF REOPENING I.E. WITHIN ONE YEAR FROM THE END OF THE FINANCIAL YEAR IN WHICH THE NOTICE WAS ISS UED. IN FACT, SECTION 153 (2A) OF THE ACT AS IN FORCE AT THE RELEVAN T 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 AN D RECEIVED BY THE COMMISSIONER OF INCOME TAX. 10. THE DIRECTOR OF THE APPELLANT HAS FILED AN AFFIDA VIT DATED 19TH SEPTEMBER, 2006. IN THE AFFIDAVIT, IT IS STATED THAT CO NSEQUENT TO THE IMPUGNED ORDER OF THE TRIBUNAL DATED 14TH AUGUST, 20 13, THE ASSESSING OFFICER HAS NOT PASSED ANY ORDER OF REASSE SSMENT. TIME WAS GRANTED ON THE LAST OCCASION TO ENABLE THE RESPONDEN T TO RESPOND TO MANISH K. AJMERA (HUF) 12 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 FIL ED BY THE DIRECTOR OF THE APPELLANT COMPANY. THE TIME TO PASS AN ORDER ON THE NOTICE DATED 28TH MARCH, 2008, EVEN CONSEQUENT TO THE IM PUGNED ORDER OF THE TRIBUNAL, HAS LAPSED. 11.THEREFORE, ON THE ABOVE FACTS AND LAW, THE SUBSTAN TIAL QUESTION OF LAW IS ANSWERED IN THE NEGATIVE I.E. IN FAVOUR OF THE APPELLANT-ASSESSEE AND AGAINST THE RESPONDENT-REVENUE. THIS DECISION HAS SUBSEQUENTLY BEEN FOLLOWED BY THE C O-ORDINATE BENCH OF THE TRIBUNAL IN NUMBER OF CASES, FEW OF WH ICH 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. 398 5-86/MUM/2016 DATED 22/05/2019] 4.THE CO-ORDINATE BENCH OF THE TRIBUNAL IN DCIT V/S FIRSTSOURCE SOLUTIONS LTD. [SUPRA], AFTER CONSIDERING THE CONTRARY CASE-LAW S 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 FRO M THE MATERIAL ON RECORD, CLEARLY REVEALS THAT IN THE COURSE OF REASSE SSMENT PROCEEDINGS, THOUGH, THE ASSESSEE HAD RAISED OBJECTIO NS CHALLENGING THE VALIDITY OF REOPENING OF ASSESSMENTS UNDER SECTI ON 147 OF THE ACT, HOWEVER, THE ASSESSING OFFICER HAS NOT DISPOSED OF TH E OBJECTIONS INDEPENDENTLY BY WAY OF SEPARATE ORDERS BEFORE COMPL ETION 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 O FFICER IS DUTY BOUND TO DISPOSE OF THE OBJECTIONS OF THE ASSESSEE SEP ARATELY. THEREFORE, THE ASSESSING OFFICER IN THE INSTANT APPEA L HAS NOT FOLLOWED THE DUE JUDICIAL PROCESS WHILE DEALING WITH THE OBJEC TIONS OF THE ASSESSEE. FOR THAT REASON, THE IMPUGNED ASSESSMENT OR DERS ARE LEGALLY UNSUSTAINABLE. NOW THE ISSUE WHICH ARISES IS, WHETHE R IN SUCH CIRCUMSTANCES, THE REASSESSMENT ORDERS PASSED HAVE TO BE QUASHED AS VOID AB INITIO 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 IS SUE IS NO MORE RES INTEGRA IN VIEW OF THE DECISION OF THE HON'BLE J URISDICTIONAL HIGH COURT IN KSS PETRON PVT. LTD. (SUPRA), WHEREIN, THE HO N'BLE JURISDICTIONAL HIGH COURT HAS HELD THAT IF THE REASSES SMENT ORDER IS PASSED WITHOUT DISPOSING OF THE OBJECTIONS RAISED BY T HE ASSESSEE, THEY MANISH K. AJMERA (HUF) 13 HAVE TO BE QUASHED AND NO SECOND OPPORTUNITY CAN BE GIVEN TO THE ASSESSING OFFICER TOPASS FRESH ASSESSMENT ORDERS AFTE R DISPOSING OF THE OBJECTIONS OF THE ASSESSEE. THE SAME VIEW HAS BEEN EXPRESSED BY THE COORDINATE BENCH IN THE DECISIONS CITED BY THE LEARNE D SR. COUNSEL FOR THE ASSESSEE. UPON CAREFUL READING OF THE DECISIO N OF THE HON'BLE SUPREME COURT IN LARSEN TOUBRO LTD. V/S STATE OF JHARK HAND & ORS., IN CIVIL APPEAL NO.5390/2007, CITED BY LEARNED DEPA RTMENTAL REPRESENTATIVE, WE FIND IT TO BE NOT APPLICABLE TO THE FAC TS OF THE PRESENT CASE, AS THE SAID DECISION IS NOT ON THE ISSUE OF VALIDITY OF RE ASSESSMENT ORDER ON ACCOUNT OF NONDISPOSAL OF OBJE CTION RAISED BY THE ASSESSEE. IT IS RELEVANT TO OBSERVE, POST CONCLUSI ON OF HEARING OF THE APPEAL, THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS SUBMITTED A NOTE CITING CERTAIN DECISIONS IN SUPPORT OF THE PROPOS ITION 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 FRES H ASSESSMENT ORDER. THE FIRST DECISION RELIED UPON BY THE LEARNED DEPARTM ENTAL 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 TH AT NONDISPOSAL OF OBJECTION BEFORE COMPLETION OF ASSESSMENT IS A PR OCEDURAL 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. AGAINST THE AFORE SAID 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 RATIO. THE ORDER PASSED BY THE HONBL E SUPREME COURT IS AS UNDER:- THE SPECIAL LEAVE PETITION IS DISMISSED. PENDING AP PLICATION STANDS DISPOSED OF. 8.IT IS A FAIRLY WELL SETTLED LEGAL POSITION THAT DISMI SSAL OF SLP IN LIMINE AT THE STAGE OF ADMISSION WITHOUT A SPEAKING OR REASONED ORDER DOES NOT CONSTITUTE A BINDING PRECEDENT UNDER ARTICLE141 O F 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 AFFIRMED BY THE HONBLE SU PREME COURT INCASE OF KHODAY DISTILLERIES LTD. VS. SHREE MAHADE SHWARA SAHAKARA SAKKARE KARKHANE LTD. WHILE DISPOSING OF CIVIL APPE AL NO.2432 OF 2019 IN JUDGMENT DATED. 01.03.2019. THEREFORE, IT CAN NOT BE SAID THAT IN THE AFORESAID DECISION, THE HON'BLE SUPREME COUR T HAS LAID DOWN THE PROPOSITION THAT NONDISPOSAL OF OBJECTIONS AGAINST TH E VALIDITY OF PROCEEDINGS INITIATED UNDER SECTION 147 OF THE ACT IS A PROCEDURAL IRREGULARITY WHICH CAN BE CURED IF THE ASSESSING OFF ICER IS GIVEN AN OPPORTUNITY TO DISPOSE OF THE OBJECTIONS OF THE ASSESSE E AND THEREAFTER COMPLETE THE ASSESSMENT. MOREOVER, THE DECISION OF TH E HON'BLE SUPREME COURT IN GKN DRIVESHAFTS INDIA LTD. (SUPRA) H AS NOT BEEN OVERRULED AND STILL HOLDS THE FIELD. THE NEXT DECISIO N CITED BY THE MANISH K. AJMERA (HUF) 14 LEARNED DEPARTMENTAL REPRESENTATIVE IS OF THE HON'BLE J URISDICTIONAL HIGH COURT IN NTUC INCOME INSURANCE COOPERATIVE LTD. V/S DDIT, [2013] 33 TAXMANN.COM 255 (BOM.). ON A CAREFUL READI NG OF THE AFORESAID DECISION, IT IS EVIDENT THAT THE FACTS ON THE BASIS OF WHICH THE HON'BLE JURISDICTIONAL HIGH COURT RESTORED BACK THE IS SUE TO THE ASSESSING OFFICER TO REFRAME ASSESSMENT DE NOVO IS C OMPLETELY DIFFERENT FROM THE PRESENT APPEAL. IN THE CASE BEFORE THE HON'BLE JURISDICTIONAL HIGH COURT, THE ASSESSING OFFICER HAD NOT ONLY COMMUNICATED THE REASONS FOR REOPENING, BUT, BY A S EPARATE COMMUNICATION HAD INTIMATED THE ASSESSEE THAT ALL CONDITI ONS LAID DOWN IN GKN DRIVESHAFTS INDIA LTD. HAS BEEN MET. ADM ITTEDLY, THE ASSESSEE DID NOT CHALLENGE THE AFORESAID DECISION OF ASSESSING OFFICER. SUBSEQUENTLY, THE REASSESSMENT ORDER WAS SUBJECTED TO THE PROCEEDINGS UNDER SECTION 263 OF THE ACT. IN OF REVIS ION PROCEEDING THE ASSESSEE CONTENDED THAT DUE TO LACK OF OPPORTUNITY VAR IOUS DOCUMENTS/EVIDENCES COULD NOT BE PRODUCED BEFORE THE A SSESSING OFFICER. CONSIDERING THE AFORESAID SUBMISSION OF THE ASSESSEE, THE COMMISSIONER SET ASIDE THE ASSESSMENT ORDER WITH A DI RECTION TO FRAME DE NOVO ASSESSMENT. DURING THE FRESH ASSESSMENT PROCEEDING ASSESSEE PLEADED THAT THE OBJECTION AGAINST REOPENING OF ASSESSMENT SHOULD BE DISPOSED OF FIRST. IN THE AFORESAID FACTUA L CONTEXT, THE HON'BLE JURISDICTIONAL HIGH COURT DID NOT ENTERTAIN AS SESSEES PLEA. HOWEVER, THE HON'BLE JURISDICTIONAL HIGH COURT IN K SS PETRON PVT. LTD. (SUPRA), IN NO UNCERTAIN TERMS, HAS HELD THAT IF THE ASSESSING OFFICER BEFORE COMPLETION OF ASSESSMENT HAS NOT DISPOS ED OF THE OBJECTION, THE ASSESSMENT ORDER CANNOT BE RESTORED BAC K TO THE ASSESSING OFFICER FOR FRAMING ASSESSMENT DE NOVO AFT ER DISPOSAL OF THE OBJECTIONS OF THE ASSESSEE. THOUGH, THE HON'BLE MADRA S HIGH COURT IN CASE OF HOME FINDERS HOUSING LTD. REFERRED TO EARLIE R 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] 72 TAXMANN.COM 321 (GUJ.) HAVE HELD CONTRARY VIEW, HOWEVER, WE ARE BOU ND BY THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT IN KSS PETR ON PVT. LTD. (SUPRA). 9.IN VIEW OF THE AFORESAID, WE DO NOT FIND ANY INFIR MITY IN THE ORDERS PASSED BY LEARNED COMMISSIONER (APPEALS) IN HOLDING THE ASSESSMENT ORDERS PASSED TO BE LEGALLY UNSUSTAINABLE. ACCORDINGL Y, GROUNDS RAISED IN BOTH THE APPEALS ARE DISMISSED. RESPECTFULLY FOLLOWING THE CITED BINDING JUDICIAL PREC EDENTS, THE ACTION OF LD. FIRST APPELLATE AUTHORITY IN UPHOLDING THE REAS SESSMENT PROCEEDINGS, COULD NOT BE SAID TO BE IN ACCORDANCE W ITH LAW. THEREFORE, WE QUASH THE REASSESSMENT ORDER DATED 29/12/2009 PASS ED BY LD. ASSESSING OFFICER. IN VIEW OF THE SAME, DEALING INTO THE MERITS OF THE CASE BECOME MERELY ACADEMIC IN NATURE AND THEREFORE, WE REFRAIN FROM DEALING THE SAME. GROUND NO. 1 STANDS ALLOWED WHICH MAKES OTHER GROUNDS OF APPEAL INFRUCTUOUS. MANISH K. AJMERA (HUF) 15 10.IN THE CASE OF FOMENTO RESORTS & HOTELS LTD., V. AC IT (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 DAT ED 25 TH MARCH, 2004, THE APPELLANTS REQUESTED THE ASSESSING OFFICE R TO DISPOSE OF SUCH OBJECTIONS BY PASSING A SPEAKING ORDER BEFORE P ROCEEDING WITH THE REASSESSMENT IN RESPECT OF THE ASSESSMENT YEAR 1997 -98. HOWEVER, THE ASSESSING OFFICER, WITHOUT PROCEEDING TO D ISPOSE OF THE OBJECTIONS RAISED BY THE APPELLANTS BY PASSING A SPE AKING ORDER, STRAIGHT AWAY PROCEEDED TO MAKE THE ASSESSMENT ORDER DA TED 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 APPELLA NT AND PURPORTS TO DISPOSE OF THE SAME. MS. LINHARES CONTENDS THAT THIS IS A SUFFICIENT COMPLIANCE WITH THE PROCEDURE SET OUT IN GKN DRIVESHA FTS (INDIA) LTD. (SUPRA), ASSUMING THAT THE SAME IS AT ALL APPLICABLE T O THE PROCEEDINGS UNDER THE SAID ACT. MR. DADA, HOWEVER, SUBMITS THAT SU CH DISPOSAL IN THE ASSESSMENT ORDER ITSELF DOES NOT CONSTITUTE THE COMP LIANCE WITH THE MANDATORY CONDITIONS PRESCRIBED BY THE HONBLE SU PREME COURT IN GKN DRIVESHAFTS (INDIA) LTD. (SUPRA). IN SUPPORT, AS NOTED EARLIER, MR. DADA RELIES UPON BAYER MATERIAL SCIENCE (P) LTD. (S UPRA) 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 A CT AND, THEREFORE, ARE NOT APPLICABLE TO THE PROCEEDINGS UNDER THE EXPEN DITURE TAX ACT, CANNOT BE ACCEPTED. IN THE FIRST PLACE, THE PROVISIONS RELATING TO REOPENING OF ASSESSMENT ARE ALMOST PARI MATERIA. SECON DLY, IN SO FAR AS ASSESSMENT YEAR 1995-96 IS CONCERNED, THE RESPOND ENT APPLIED THE VERY SAME RULING IN GKN DRIVESHAFTS (INDIA) LTD. (SU PRA) 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 S AID ACT AND INCIDENTALLY IN THE SPECIFIC CONTEXT OF THIS VERY AP PELLANT, WAS UPHELD NOT ONLY BY THIS COURT, BUT ALSO BY THE HONBLE SUPREME COURT. THIS WAS IN ETA NO.1 AND 5/PANJ/01 DECIDED BY THE TRIBUN AL ON 4.4.2006. 15.THE AFORESAID DECISION OF THE ITAT WAS APPEALED B Y THE RESPONDENT VIDE TAX APPEAL NO.71/2006. THIS APPEAL WAS DISMISS ED BY THIS COURT VIDE ORDER DATED 27TH NOVEMBER, 2006, WHICH READS THU S : HEARD THE LEARNED COUNSEL ON BEHALF OF THE PARTIES. T HIS 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 TH AT THE ASSESSING OFFICER IS REQUIRED TO GIVE REASONS, WHEN ASKED FOR BY THE ASSESSEE. GIVING OF REASONS HAS GOT TO BE CONSIDER ED AS IMPLICIT IN SECTION 11 OF THE EXPENDITURE TAX ACT, 198 7. IT IS NOW WELL SETTLED THAT GIVING REASONS IN SUPPORT OF AN OR DER IS PART OF COMPLYING WITH THE PRINCIPLES OF NATURAL JUSTIC E. MANISH K. AJMERA (HUF) 16 IN THE LIGHT OF THAT, NO FAULT COULD BE FOUND WITH THE O RDER OF THE LEARNED ITAT AND AS SUCH NO SUBSTANTIAL QUESTION OF L AW ARISES AS WELL. APPEAL DISMISSED. 16.THE RESPONDENT, INSTITUTED A SPECIAL LEAVE TO APPE AL (CIVIL) NO.5711/2007 WHICH WAS, HOWEVER, DISMISSED BY THE H ONBLE APEX COURT VIDE ORDER DATED 16/7/2007, BY OBSERVING THAT THE RE WERE NO MERITS. 17.ACCORDINGLY, FOR THE AFORESAID REASONS, WE ARE U NABLE TO ACCEPT MS. LINHARESS CONTENTION BASED UPON THE ANY ALLEGED VARI ANCE BETWEEN THE PROVISIONS OF THE SAID ACT AND THE PROVISIONS OF TH E INCOME TAX ACT, IN SO FAR AS APPLICABILITY OF THE PRINCIPLES IN GKN DRIVESHAFTS (INDIA) LTD. (SUPRA) IS CONCERNED.1 8.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 PR ESCRIBED BY THE HONBLE SUPREME COURT IN THE CASE OF GKN DRIVESHAFTS (INDIA) LTD. (SUPRA) OR, WHETHER IT WAS NECESSARY FOR THE ASSESSIN G OFFICER TO HAVE FIRST DISPOSED OF THE APPELLANTS OBJECTIONS BY PASS ING A SPEAKING ORDER AND ONLY UPON COMMUNICATION OF THE SAME TO THE APPELL ANTS, PROCEEDED TO REOPEN THE ASSESSMENT FOR THE ASSESSMEN T 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 I N THE YEAR 2007-08. THE ASSESSEE FILED A REVISED RETURN OF INCO ME AND SOUGHT FOR REASONS RECORDED IN SUPPORT OF THE NOTICE DATED 6.2.20 13. THE REASONS WERE FURNISHED ONLY ON 19.3.2015. THE ASSESSEE LODG ED OBJECTIONS TO THE REASONS ON 25TH MARCH, 2015. THE ASSESSING OFFIC ER, WITHOUT DISPOSING OF THE PETITIONERS OBJECTIONS, MADE A DRAFT ASSESSMENT ORDER DATED 30TH MARCH, 2015, SINCE THIS WAS A MATTER INVOL VING TRANSFER PRICING. IN SUCH CIRCUMSTANCES, THE DIVISION BENCH O F THIS COURT, SET ASIDE THE ASSESSMENT ORDER BY OBSERVING THAT THE COURT WAS UNABLE TO UNDERSTAND HOW THE ASSESSING OFFICER COULD, AT ALL, E XERCISE THE JURISDICTION AND ENTER UPON AN INQUIRY ON THE REOPENI NG 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 ASSESSMEN T ORDER, WERE WITHOUT JURISDICTION AND QUASHED THE SAME. 21.SIMILARLY, IN THE CASE OF KSS PETRON PRIVATE LTD. ( SUPRA), THIS COURT WAS CONCERNED WITH THE FOLLOWING SUBSTANTIAL QUESTION O F LAW : MANISH K. AJMERA (HUF) 17 WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE A ND 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 OFF ICER WITHOUT HAVING DISPOSED OF THE OBJECTIONS FILED BY THE APPELLANT TO THE REASONS RECORDED IN SUPPORT OF THE REOPENING N OTICE DATED 28TH MARCH, 2008 ? 22.IN THE AFORESAID CASE, THE ASSESSING OFFICER HAD PURPORTED TO DISPOSE OF THE OBJECTIONS TO THE REASONS IN THE ASSESS MENT ORDER, CONSEQUENT UPON REOPENING OF THE ASSESSMENT. THIS COU RT, HOWEVER, HELD THAT THE PROCEEDINGS FOR REOPENING OF ASSESSMENT PRIOR TO DISPOSING OF THE ASESSEES OBJECTIONS BY PASSING A SP EAKING ORDER, WAS AN EXERCISE IN EXCESS OF JURISDICTION. 23.KSS PETRON PRIVATE LTD. (SUPRA), THIS IS WHAT THE D IVISION BENCH HAS OBSERVED AT PARAGRAPHS 7 AND 8 OF THE JUDGMENT : 7.ON FURTHER APPEAL, THE TRIBUNAL PASSED THE IMPUGN ED ORDER. BY THE IMPUGNED ORDER IT HELD THAT THE ASSESSING OFFIC ER WAS NOT JUSTIFIED IN FINALIZING THE ASSESSMENT, WITHOUT HAVING FIRST DISPOSED OF THE OBJECTIONS OF THE APPELLANT. THIS IMP UGNED 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 SE T ASIDE. HOWEVER, AFTER HAVING SET ASIDE THE ORDERS, IT RESTORED THE ASSESSMENT 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 ASSES SMENT 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 R EOPENING NOTICE, WITHOUT JURISDICTION (WITHOUT COMPLIANCE OF THE L AW IN ACCORDANCE WITH THE PROCEDURE), YET THE ONLY CONSEQUE NCE, WOULD BE THAT IN APPEAL, IT WOULD BE RESTORED TO THE A SSESSING OFFICER FOR FRESH ADJUDICATION AFTER FOLLOWING THE DU E PROCEDURE. THIS WOULD LEAD TO UNNECESSARY HARASSMENT OF THE ASSE SSEE BY REVIVING STALE/OLD MATTERS. 24.ACCORDING TO US, THE RULINGS IN BAYER MATERIAL SC IENCE (P) LTD. (SUPRA) AND KSS PETRON PRIVATE LTD. (SUPRA) AFF ORD A COMPLETE ANSWER TO THE CONTENTIONS RAISED BY MS. LINH ARES IN DEFENCE OF THE IMPUGNED ORDER. MANISH K. AJMERA (HUF) 18 25.SINCE, IN THE PRESENT CASE, THE ASSESSING OFFICER H AS PURPORTED TO ASSUME THE JURISDICTION FOR REOPENING OF THE ASSESSMENT, WITHOUT HAVING FIRST DISPOSED OF THE ASSESS EES OBJECTIONS TO THE REASONS BY PASSING A SPEAKING ORDER , FOLLOWING THE LAW LAID DOWN IN GKN DRIVESHAFTS (INDIA) LTD. (SUP RA), BAYER MATERIAL SCIENCE (P) LTD. (SUPRA) AND KSS PETRON PRIV ATE LTD. (SUPRA), WE ARE CONSTRAINED TO HOLD THAT SUCH ASSUMPTIO N OF JURISDICTION BY THE ASSESSING OFFICER WAS ULTRA VIRES SECTION 11 OF THE SAID ACT. THE FIRST SUBSTANTIAL QUESTION OF LAW WI LL, ACCORDINGLY, HAVE TO BE ANSWERED IN FAVOUR OF THE AP PELLANT AND AGAINST THE RESPONDENT-REVENUE. 11.AS COULD BE SEEN FROM THE ABOVE DECISION OF THE H ON'BLE BOMBAY HIGH COURT EVEN IF ASSESSING OFFICER DISPOSED OFF THE OBJ ECTIONS 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 SUP REME COURT IN THE CASE OF GKN DRIVESHAFTS (INDIA) LTD., (SUPRA) IN OTHER WO RDS 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 ORDE R, 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 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. 12. AS WE HAVE ALLOWED PRELIMINARY GROUND RAISED BY THE ASSESSEE WE ARE NOT INCLINED TO GO INTO OTHER GROUNDS AND VARIOUS CONTENTIO NS RAISED BY THE ASSESSEE ON MERITS AS IT WOULD RENDER ONLY AN ACADEMI C EXERCISE. 13.IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORDS. WE FIND THAT IN THESE CASES THE ASSESSING OFFICER HAS IN HIS ASSESS MENT ORDER NOTED THAT ASSESSEE DID NOT FILE THE OBJECTION TO THE REOPENIN G. HOWEVER LEARNED CIT(A) IN HIS ORDER HAS NOTED THIS ASPECT. HE HAS ALSO REPROD UCED ONE OF THE LETTERS BY THE ASSESSEE TO THE ASSESSING OFFICER WHEREIN OBJEC TIONS TO REOPENING WERE DULY RAISED. 5. HOWEVER LEARNED CIT(A) IS OF THE OPINION THAT HO NOURABLE 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 T HIS PREMISE HE HAS REJECTED THE ASSESSEES CONTENTION THAT ASSESSMENT IS BAD IN AS MUCH AS OBJECTIONS TO REOPENING HAVE NOT BEEN DISPOSED OFF. HOWEVER WE NO TE THAT THE ABOVE VIEW OF MANISH K. AJMERA (HUF) 19 THE LEARNED CIT APPEALS IS NOT IN ACCORDANCE WITH H ONOURABLE BOMBAY HIGH COURT DECISION IN THE CASE OF FOMENTO RESORTS & HOT ELS 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 SUBOR DINATE COURTS AND TRIBUNALS. WE FIND THAT LEARNED CIT APPEALS HAS ERR ED NOT FOLLOWING THE BINDING ORDER OF HONOURABLE JURISDICTIONAL HIGH COURT AND I NSTEAD OF REFERRING TO A DELHI HIGH COURT DECISION IN THIS REGARD. 6. ACCORDINGLY IT IS CLEAR THAT THE ASSESSING OFFIC ER IS WRONG IN OBSERVING THAT ASSESSEE HAS NOT FILED OBJECTION TO REOPENING. THE OBJECTION TO REOPENING WAS INTIMATED TO ASSESSING OFFICER AND THE OBJECTIO NS HAVE NOT BEEN DISPOSED OFF. THIS, AS PER THE RATIO OF HON'BLE JURISDICTIO NAL HIGH COURT DECISION AS REFERRED ABOVE IS FATAL TO THE ASSESSMENT. HENCE, W E SET ASIDE THE ORDERS OF AUTHORITIES BELOW AND DECIDE THE 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 ENGA GING TO THE SAME. ITA NO. 7396 & 7397/MUM/2019 8. SINCE FACTS ARE IDENTICAL AND ORDERS OF THE AUTH ORITIES BELOW ARE ALSO IDENTICAL OUR ABOVE ADJUDICATION APPLIES MUTATIS MU TANDIS TO THESE APPEALS ALSO. HENCE, THE REOPENING IN THESE APPEALS IS ALSO HELD TO BE INVALID. 9. IN THE RESULT, THESE APPEALS BY THE ASSESSEE STA ND ALLOWED. PRONOUNCED IN THE OPEN COURT ON 9.6.2021. SD/- SD/- (AMARJIT SINGH) (SHAMIM Y AHYA) JUDICIAL MEMBER ACCOUNTAN T MEMBER MUMBAI; DATED : 09/06/2021 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT MANISH K. AJMERA (HUF) 20 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( ASSISTANT REGISTRAR) PS ITAT, MUMBAI