The passing of an order dealing with
theobjections filed by the assessee is not an empty formality. The
assessing officer has to apply his mind to theobjections raised
and has to deal with the objections in the order. This has not been
done in the present case. Consequently, order dated 28.01.2013 is set-aside.
THE HIGH
COURT OF DELHI AT NEW DELHI
Judgment
delivered on: 08.02.2013
W.P.(C)
711/2013
M/S
JAY BHARAT MARUTI
LTD
versus
ASSTT.
COMMISSIONER OF INCOME TAX AND ORS
JUDGMENTBADAR DURREZ AHMED, J
(ORAL)
This writ petition is directed
against the notice dated 30.08.2011 issued by the respondent undersection
148 of the Income Tax Act, 1961 (hereinafter referred to as „the
said Act‟) pertaining to theassessment year 2007-08. It is also
directed against the order dated 28.01.2013 whereby the respondent has rejected
the objections raised by the petitioner pursuant to the receipt of
the purported reasons behind the proposed reopening of
the assessment for the said assessment year 2007- 08.
2. On going through the order dated
28.01.2013 we find that the same has been passed without anyapplication of
mind. To say the least, it is a cut-and-paste job. This is apparent from the
fact that the paragraph 3 is merely a repetition of the provisions of section
147 and 148 of the said Act. Thereafter, paragraphs 4, 5 upto 5.6 comprise of
quotations and extracts from Supreme Court andHigh
Court decisions. Paragraph 5.7 is perhaps a reference to the case at hand.
However, we find that the words mentioned therein could apply to any
case. It appears to be a generic paragraph which is perhaps applied by the
respondent to several such cases. In order to appreciate this fact we are
reproducing the paragraph 5.7 hereinbelow: -
“5.7 In this case, the belief of the
AO has been held in good faith and not on the basis of any rumour. In fact the
reasons for issue of notice existed at the time of issue of notice and the
reasons are genuine. They were in fact communicated to the assessee also. The
reasons recorded are quite detailed. As is evident from the perusal of the
reasons recorded, they in fact record the satisfaction of the AO that the
income has escaped assessment on the basis of the reasons elucidated
and the material on record as relied upon by the AO at the time while recording
his satisfaction that the income had in fact
escaped assessment.”
3. Apart from the aforesaid
paragraph there is no discussion of the points raised by the petitioner in
its objections. In fact, portions of the objections furnished by
the petitioner have been copied verbatim as would be apparent from paragraph 2
of the order which reads as under: -
“2. Notice u/s. 148 was issued after
recording the reasons under section 147 of the Act on 30.08.2011 and duly
served. In response to the same, assessee has submitted written submission
dated 27.09.2011 wherein the assessee submitted that the notice is illegal and
without jurisdiction. We object the reassessment proceedings. The return
already filed by u/s 139 for A Y 2007-08 may please be treated as return filed
in pursuance of the notice now received. Further, it was also requested to
enable us to make objections both on facts and in law to the proposed
reassessment, please give us reasons recorded for reopening the assessee and
also the order of sanction obtained for the purpose and on receipt of the same
we shall make detailed submission and objection, both on facts and in
law after which we wish to be heard in person for which adequate opportunity be
granted to determine the justifiability or otherwise of the action for
reassessment in terms of the decision of GKN Driveshaft Ltd. Vs. CIT (2003) 259
ITR 19 (SC) and not issue on merits be taken up for any decision before the
validity of action for reassessment is decided. The reasons recorded under
section 147 were provided to the AR of the Assessee Company. The assessee filed
an objection against the issuance of notice under section 148 vide written
submission.”
It is apparent on going through the
above extract that the respondent has not even bothered to change the
words such as “we”, “us”, etc. which the petitioner had used in
its objections/ reply. This shows that the respondent had not even applied
his mind and not even bothered to correct the contents of paragraph 2 so as to
put it into second person or third person in the grammatic sense.
4. For the aforesaid reasons, after
hearing the counsel for the parties at the stage of admission itself
we feel that such an order cannot be permitted to stand as it smacks of
non-application of mind. The passing of an order dealing with
the objections filed by the assessee is not an empty formality. The
assessing officer has to apply his mind to
the objections raised and has to deal with theobjections in the
order. This has not been done in the present case. Consequently, order dated
28.01.2013 is set-aside. The matter is remitted to the respondent to pass a
fresh order after taking into account the objections filed by the
petitioner as also after giving the petitioner an opportunity of hearing. The
order be passed by the respondent within three weeks. We have not commented at
all on the merits of this petition with regard to the validity of the notice
dated 30.08.2011. That issue is kept open. The writ petition stands disposed
of.
