Xerox Medicorp Ltd vs Deputy Commissioner Of Income Tax ...
2010 Latest Caselaw 1848 Del

             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) 2305/2010 & 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.

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