XEROX MEDICORP LTD V. DEPUTY COMISSIONER OF INCOME TAX AND ORS

W.P.(C)/2305/2010

AI Insights

The case involves Xerox Medicorp Ltd., the appellant, contesting the reopening of their income tax assessments for the years 2002-03 and 2004-05 by the Deputy Commissioner of Income Tax and others, the respondents. The assessments were initially completed under Section 143(3) of the Income Tax Act, 1961, but were later reopened under Sections 147/148 following notices dated 30.03.2009. The appellant challenged the lack of a speaking order addressing their objections before the Assessing Officer proceeded with the assessments, which were completed on 31.12.2009. The High Court, referencing the Supreme Court's decision in GKN Driveshafts (India) Ltd. v. ITO, found that the Assessing Officer had not followed the required procedure and thus set aside the assessment orders.

• Counselvise Citation: [2010] 140 COUNSELVISE.COM (IT) 752260 (HC-DELHI)
• Appeal Type: Others
• Pronouncement Date: 08-04-2010
• Assessment Year: misc
• Other Referred Cases: GKN Driveshafts (India) Ltd. v. ITO, Kamlesh Sharma v. B.L. Meena, ITO
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: SANJEEV SABHARWAL
• Assessee Lawyers: AJAY VOHRA; KAVITA JHA; AKANSHA AGGARWAL
• Keywords: Assessment Reopening; GKN Driveshafts (India) Ltd. v. ITO; Income Tax; Speaking order
• Section: 147; 148; 143(3)

Judgement Text

" W.P(C) 2305 & 2307 of 2010 Page No.1 of 3 THE HIGH COURT OF DELHI AT NEW DELHI % Judgment delivered on: 08.04.2010 + W.P.(C) 2305/2010 & CM 4638/2010 XEROX MEDICORP LTD … Appellant - versus - DEPUTY COMMISSIONER OF INCOME TAX AND ORS ... Respondent And + W.P.(C) 2307/2010 & CM 4642/2010 XEROX MEDICORP LTD … Appellant - versus - DEPUTY COMMISSIONER OF INCOME TAX AND ORS ... Respondent Advocates who appeared in these cases: For the Petitioner : Mr Ajay Vohra, Ms Kavita Jha and Ms Akansha Aggarwal For the Respondent : Mr Sanjeev Sabharwal CORAM:- HON’BLE MR JUSTICE BADAR DURREZ AHMED HON’BLE MR JUSTICE V.K. JAIN 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in Digest? BADAR DURREZ AHMED, J (ORAL) CM 4639/2010 & CM 4643/2010 (Exemption) Allowed subject to all just exceptions. W.P(C) 2305 & 2307 of 2010 Page No.2 of 3 W.P.(C) 2305/2010 & W.P.(C) 2307/2010 1. These writ petitions are taken up together inasmuch as identical issues arise for consideration. The writ petitions relate to assessment year 2002-03 and 2004-05. In both cases, assessments had been completed under Section 143(3) of the Income Tax Act, 1961. However, subsequent thereto, by separate notices, both dated 30.03.2009 the Revenue sought to reopen the assessment under Sections 147/148 of the said Act. 2. The assessee sought reasons for reopening. The same were supplied and the assessee preferred objections thereto in both cases. The assessee, thereafter, awaited the passing of the speaking orders in terms of the decision of the Supreme Court in the case of GKN Driveshafts (India) Ltd. v. ITO 259 ITR 19 (SC). However, the same was not forthcoming and the Assessing Officer proceeded with the assessment proceedings and framed the assessment orders in both cases on 31.12.2009. 3. The petitioner/assessee is before us as it is aggrieved by the fact that the Assessing Officer did not follow the procedure laid down by the Supreme Court in GKN Driveshafts (supra) inasmuch as the Assessing Officer did not pass any speaking order prior to proceeding with the framing of assessment. The learned counsel for the petitioner placed reliance on decision of this Court in the case of Kamlesh Sharma v. B.L. Meena, ITO 287 ITR 337 (Del) wherein, under virtually identical circumstances, this Court set-aside the assessment order and directed the Assessing Officer to consider the objection preferred by the assessee and, thereafter, pass a speaking order prior to proceeding with the framing of assessment. W.P(C) 2305 & 2307 of 2010 Page No.3 of 3 4. We have heard counsel for the parties and we are of the view that the position in law is very clear as laid down by the Supreme Court in GKN Driveshafts (supra), wherein it has been indicated that the framing of the assessment has to proceed only after passing of the speaking order. In the present cases, no speaking orders have been passed and the objections have only been taken care of in the assessment orders. Consequently, the only course left to us is to direct that the assessment orders be set-aside and that the Assessing Officer be directed to consider the objections filed by the assessee in both cases and pass separate speaking orders dealing with the said objections. Thereafter, he may proceed with the framing of the assessments. It is ordered accordingly. The assessee will not raise the question of limitation. 5. The writ petitions and pending applications stand disposed of. BADAR DURREZ AHMED, J V.K. JAIN, J APRIL 08, 2010 Ag "