Tuesday, 11 August 2015

Whether if assessee participates in reassessment proceedings without questioning Sec 148 notice and proceedings are later dropped but CIT invokes revisionary powers, in such case assessee is free to challenge Sec 148 notice - YES: HC


THE issue before the Bench is - Whether if assessee participates in reassessment proceedings without questioning Sec 148 notice and proceedings are later dropped but CIT invokes revisionary powers, in such case assessee is free to challenge Sec 148 notice. YES is the answer.
Facts of the case
The assessee is a partnership firm and derives income from business of manufacturing and export of gold jewellery, which activities are carried out from the Special Economic Zone. AO had issued a notice u/s 148 to reopen the assessment for AY 2007-08 as well as the impugned notice issued by the proposed CIT – Revisional Authority by which in exercise of powers u/s 263, assessee had called upon to show-cause why the assessment made u/s 143(3) read with section 147 may not be treated as erroneous and prejudicial to the interest of the Revenue and by which the assessee had been called upon and/or required to show cause why the assessment may not be re-framed by making additions as suggested in the said show-cause notice. Thereafter the assessee participated in the reassessment proceedings and AO completed the assessment u/s 143(3) read with section 147 and passed the reassessment order dropping the proceedings which were initiated. Then the Revisional Authority – Principal CIT had issued the show-cause notice dated 26.11.2014 u/s 263 having opined and satisfied that the reassessment order dated 25.05.2014 dropping the reassessment proceeding is erroneous and prejudicial to the interest of the Revenue. That after having been served with the show-cause notice u/s 263 dated 26.11.2014 by which the assessee had been called upon to show cause why the order dropping the reassessment proceedings be not considered as erroneous and prejudicial to the interest of the Revenue and by which the assessee had been called upon to show-cause as to why the assessment be not reframed by making the additions as suggested in the said show-cause notice issued under section 263, the assessee had preferred the present Special Civil Application in the month of January 2015 initially challenging both the notices i.e. notice issued u/s 148 dated 29.03.2014 and the subsequent show-cause notice issued under section 263, however as recorded hereinabove, Senior Advocate does not press the present petition to challenge the subsequent show-cause notice issued u/s 263 and therefore, the challenge in the present Special Civil Application would be with respect to the notice dated 29.03.2014 issued u/s 148 only.
Held that,
++ at this stage it is also required to be noted that AY 2007-08 was the first year with respect to claim u/s 10AA and AO without any further discussion and/or considering the exemption claimed u/s 10AA in detail accepted the return filed by the assessee and sent the intimation u/s 143(1). There was no scrutiny assessment u/s 143(3) at the time of original assessment. That is how the assessment for AY 2007-08 was reopened for which the notice u/s 148 dated 29.03.2014 was issued. However, again without any application of mind by the AO and without any further discussion with respect to the exemption u/s 10AA claimed by the assessee and/or any further discussion on the aforesaid issue, by passing one line order the AO has dropped the reassessment proceedings, which has given rise to the show-cause notice by the Commissioner u/s 263. Under the circumstances, none of the decisions relied upon by the Counsel appearing on behalf of the petitioners in support of his submission challenging the notice u/s 148 are required to be considered and/or none of them shall be applicable to the facts of the case on hand. As observed hereinabove, once having participated in the reassessment proceedings without challenging the notice u/s 148 and thereafter reassessment proceedings are dropped and thereafter a show-cause notice has been issued by the Commissioner taking the reassessment order [which is a one line order] under revision, in such facts and circumstances of the case, it is not open for the petitioner now to challenge the notice u/s 148. As observed hereinabove, it is nothing but a malafide and an afterthought. Therefore, in the facts and circumstances of the case, petitioner now cannot be permitted to challenge the notice u/s 148;
++ so far as the submission of Counsel appearing on behalf of the petitioner that in subsequent years the benefit/exemption u/s 10AA has been allowed by the AO and therefore, on the principle of Rule of Consistency, it is not permissible to open the issue with respect to exemption u/s 10AA with respect to the first year is concerned, the aforesaid has no substance. As observed hereinabove, in the first year i.e. AY 2007-08, AO accepted the return accepting the exemption under Section 10AA claimed by the assessee and sent the intimation u/s 143(1), without any discussion on the issue / exemption u/s 10AA claimed by the assessee. As the same was allowed in the first year which was without any discussion at all and it was an intimation under Section 143(3), in the subsequent years the AOs have mechanically allowed the exemption u/s 10AA claimed by the assessee. That does not mean that the exemption u/s 10AA allowed by AOs in the first year, which was allowed without any further discussion and/or without applying any mind, cannot be reopened. The same can always be permitted to be reopened, however subject to the conditions being fulfilled u/s 147. Under the circumstances, on the aforesaid ground, the notice u/s 148 cannot be quashed and set aside. However, as observed hereinabove, as such it is not open for the petitioner now to challenge the notice u/s 148 in the facts and circumstances of the case narrated hereinabove. In view of the above and for the reasons stated above, present Special Civil Application fails and the same deserves to be dismissed and is, accordingly, dismissed. Rule is discharged. Ad-interim relief, if any, stands vacated forthwith.

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