आयकर अपील य अ धकरण, अहमदाबाद यायपीठ ‘सी’ अहमदाबाद । IN THE INCOME TAX APPELLATE TRIBUNAL “C” BENCH, AHMEDABAD ी एन0एस0 सैनी, लेखा सद य एवं ी कुल भारत, या यक सद य के सम BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER आयकर अपील सं./ ITA No. 1384/Ahd/2011 नधारण वष/Assessment Year: 2002-03 M/s. Siddh Giri Developers, Vasant Vihar Township, Petlad Road, Nadiad PAN : AAPFS 2404 M Vs अपीलाथ / (Appellant) Assessee(s) by : Revenue by : ACIT, Central Circle-2, Baroda यथ / (Respondent) Shri S.N. Soparkar, AR Shri M.K. Singh, Sr. DR. सुनवाई क तार ख/ Date of Hea rin g : घोषणा क तार ख / Date o f Pronouncement: 13/11/2014 28/11/2014 आदे श/O R D E R PER SHRI N.S. SAINI, ACCOUNTANT MEMBER: This is an appeal filed by the assessee against the order of the Commissioner of Income-Tax (Appeals)-IV, Ahmedabad dated 09.03.2011. 2. The assessee has taken following grounds of appeal:1. In law and in the facts and circumstances of the appellant’s case, the learned CIT(A) has grossly erred in dismissing ground of appeal challenging the initiation or reassessment proceedings and framing reassessment order u/s 147 of the Act. The Learned CIT(A) ought to have appreciated that reassessment proceedings in appellant’s case itself is bad in law and consequential reassessment order passed by AO requires to be quashed. ITA No.1384/Ahd/2011 M/s. Siddh Giri Developers For AY 2002-03 2 2. Without prejudice to above, in law and in the facts and circumstances of the appellant’s case, the learned CIT(A) ought to have appreciated that reassessment proceedings initiated u/s 147 of the Act is bad in law in terms of provisions of section 149(1)(b) of the Act. 3(a) In law and in the facts and circumstances of the appellant’s case, the learned CIT(A) has grossly erred in confirming addition of Rs.23,03,281/- treated cash deposits during the year as unexplained cash deposits received during the year. He ought to have deleted entire addition made by AO. (b)In law and in the facts and circumstances of the appellant’s case, the learned CIT(A) has failed to appreciate that entire addition has been made by solely on the basis of laptop found from the possession of third party and further that the data found from the laptop was entered by a 10th fail person who was not conversant with accounts and with digital operation computer. 4. In the law and in the facts and circumstances of the case, the appellant denies his liability to pay interest. 5. The appellant craves leave to add, alter, amend and/or withdraw any ground or grounds of appeal either before or during the course of hearing of the appeal. 3. The AR the of the assessee, while arguing ground No.1 of the appeal, submitted that the assessee has raised objections to the issuance of notice u/s 148 of the Act vide letter dated 11.11.2009 which was received in the office of the Assessing officer on 16.11.2009. He has placed a copy of the said letter on record. He further submitted that the impugned order was passed without disposing off the objections of the assessee separately and without waiting for reasonable time before passing the impugned re-assessment order and therefore, the re-assessment order is liable to be quashed. The AR of the assessee relied upon the order of the Hon’ble Gujarat High Court in ITA No.1384/Ahd/2011 M/s. Siddh Giri Developers For AY 2002-03 3 the case of General Motors India P. Ltd. v. DCIT, [2013] 354 ITR 0244 (Guj.). He further submitted that this Bench of the Tribunal in the case of M/s. Bharuch Enviro Infrastructure Ltd v. DCIT vide order dated 05.08.2014 in ITA Nos.731 & 732/Ahd/2007 in AYs 2000-01 & 2001-02, following the order of Hon’ble Gujarat High Court in the case of General Motors India P. Ltd. (supra), quashed the re-assessment order on the ground that the assessee’s objections to the re-assessment proceedings were not disposed off by the Assessing Officer by passing a separate order, but was disposed off in the assessment order dated 22.03.2006 itself, passed u/s 143(3) r.w.s. 147 of the Act. 4. On the other hand, the DR supported the orders of the lower authorities. 5. We find that, in the instant case, it is not in dispute that the assessee filed his objections against the issuance of notice u/s 148 of the Act vide his letter dated 11.11.2009 which was received by the office of the Assessing Officer on 16.11.2009. Thereafter, the Assessing Officer passed the impugned re-assessment order on 19.11.2009, disposing off the objections to re-assessment proceedings of the assessee in the order itself. Thus, these facts show that the objections raised by the assessee against the issuance of notice u/s 148 of the Act were not disposed off by the Assessing Officer by passing a speaking order thereon and allowing reasonable time to the assessee after communicating the fate of the objections before proceeding with the reassessment. The Hon’ble Gujarat High Court in the case of General Motors India P. Ltd v. DCIT (supra) has held as under:“From the aforesaid discussion, we are of the considered opinion that the writ petition under article 226 of the Constitution of India is maintainable where no order has been passed by the Assessing ITA No.1384/Ahd/2011 M/s. Siddh Giri Developers For AY 2002-03 4 Officer deciding the objection filed by the assessee under section 148 of the Act and assessment order has been passed or the order deciding an objection under section 148 of the Act has not been communicated to the assessee and assessment order has been passed or the objection filed under section 148 has been decided along with the assessment order. If the objection under section 148 has been rejected without there being any tangible material available with the Assessing Officer to form an opinion that there is escapement of income from assessment and in the absence of reasons having direct link with the formation of the belief, the writ court under article 226 can quash the notice issued under section 148 of the Act. The writ petition filed by the petitioner is maintainable. The Assessing Officer is mandated to decide the objection to the notice under section 148 and supply or communicate it to the assessee. The assessee gets an opportunity to challenge the order in a writ petition. Thereafter, the Assessing Officer may pass the reassessment order. We hold that it was not open to the Assessing Officer to decide the objection to notice under section 148 by a composite assessment order. The Assessing Officer was required to, first decide the objection of the assessee filed under section 148 and serve a copy of the order on the assessee. And after giving some reasonable time to the assessee for challenging his order, it was open to him to pass an assessment order. This was not done by the Assessing Officer, therefore, the order on the objection to the notice under section 148 and the assessment order passed under the Act deserves to be quashed.” 6. Therefore, respectfully following the above decision of the Hon’ble Jurisdictional High Court, we are of the considered view that the impugned order of re-assessment passed by the Assessing Officer without disposing off the objections raised by the assessee against the issuance of notice u/s 148 by a separate order is liable to be quashed. We order accordingly. Thus, this ground of appeal of the assessee is allowed. ITA No.1384/Ahd/2011 M/s. Siddh Giri Developers For AY 2002-03 5 7. As we have quashed the re-assessment order dated 19.11.2009 while disposing off ground No.1 of the appeal of the assessee, the other grounds of appeal raised by the assessee on the merits of the addition in this appeal have become infructuous and hence dismissed. 8. In the result, the appeal of the assessee is allowed. Order pronounced in the Court on Friday, the 28th of November, 2014 at Ahmedabad. Sd/- Sd/- (KUL BHARAT) JUDICIAL MEMBER Ahmedabad; ( N.S. SAINI) ACCOUNTANT MEMBER Dated 28/11/2014 Biju T., PS आदे श क त ल प अ े षत/Copy of the Order forwarded to : 1. अपीलाथ / The Appellant 2. 3. 4. 5. 6. यथ / The Respondent. संबं धत आयकर आयु त / Concerned CIT आयकर आयु त(अपील) / The CIT(A)-III, Ahmedabad वभागीय त न ध, आयकर अपील य अ धकरण, अहमदाबाद / DR, ITAT, Ahmedabad गाड फाईल / Guard file. आदे शानुसार/ BY ORDER, TRUE COPY उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपील य अ धकरण, अहमदाबाद / ITAT, Ahmedabad