|CORAM:||Ashwani Taneja (AM), Saktijit Dey (JM)|
|CATCH WORDS:||reasons, Reopening|
|COUNSEL:||Dr. K. Shivram|
|DATE:||October 28, 2015 (Date of pronouncement)|
|DATE:||November 20, 2015 (Date of publication)|
|FILE:||Click here to download the file in pdf format|
|S. 147/ 148: Issue of furnishing the ‘Reasons’ for reopening the assessment goes to the root of the matter. In the event of failure of the AO to furnish the reasons, the reopening is bad in law|
(i) The undisputed facts are that, one – no ‘Reasons’ are available in the assessment record, and two there is nothing on record to show that certified copy of verbatim ‘Reasons’ was ever provided to the assessee, despite the request made by the assessee before AO, more than once. It clearly indicates that no ‘Reasons’ were recorded infact and therefore, these could not have been provided to the assessee. Had the ‘Reasons’ been recorded by AO, these would have definitely been provided to the assessee. The position of law is clear. It has been held by Hon’ble Supreme Court in the case of GKN Driveshaft 259 ITR 19, that it is mandatory on the part of the AO to provide the copy of the reasons to the assessee and to meet the objections filed by the assessee thereto, if any, before the AO can frame the reassessment order. It is further noted that Hon’ble Bombay High Court in the case of CIT v. Videsh Sanchar Nigam Ltd. (2012) 340 ITR 66 (Bom.), has held that in case reasons are not furnished by the AO to the assessee, before completion of reassessment proceedings, reassessment order cannot be upheld. It is further noted that SLP filed by the Revenue against the order of Hon’ble Bombay High court, has been rejected by Hon’ble Supreme Court. Similar view has been taken by Hon’ble Mumbai bench of ITAT in the case of Tata International Ltd. Vs. DCIT  52 SOT 465 (Mum) and also in few other judgments. We further derive support of our view from a latest judgment of Hon’ble Bombay High Court in the case of CIT vs. Trend Electronic in ITA No.1867/2013 order dated 16th September 2015. In this case, Hon’ble Jurisdictional High Court, following its earlier decision in the case of Videsh Sanchar Nigam Ltd. (supra), held that law laid down by Hon’ble Supreme Court in the case of G.K.N. Driveshafts (India) Ltd, is clear and mandatory for implementation and it is to be strictly followed by the AO before farming the reassessment order. It was further held that rule with regard to furnishing of reasons by the AO is to be followed strictly, as the power given to the AO for reopening of a completed assessment under the Income Tax Act, is an exceptional power and whenever Revenue seeks to exercise such power, it must strictly comply with the prerequisite conditions i.e. ‘Reasons’ must be recorded and these recorded ‘Reasons’ must be furnished to the assessee, when sought for, so as to enable the assessee to object to the same, during the course of assessment proceeding.
(ii) Similar view has been reiterated by Hon’ble Karnataka High Court in the case of Kothari Metals (writ appeal no.218/2015, order dated 14th August 2015, wherein it has been held that the question of non-furnishing the ‘Reasons’ for reopening an already concluded assessment goes to very root of the matter, and that the assessee is entitled to be furnished the ‘Reasons’ for such reopening and that if ‘Reasons’ are not furnished to the assessee, then the proceedings for the reassessment cannot be taken any further, and reopening of the assessment would be bad in law.