2018 (12) TMI 1608 - HC - Income Tax

Reopening of assessment - claim of excess deduction u/s 10AA which was liable to be taxed in the hands of the partners - HELD THAT - As submitted that in view of the fact that the order of the Assessing Officer was subject matter of appeal before the Commissioner (Appeals) the principle of merger would apply here and the assessment order would merge with the order passed by the Commissioner (Appeals). Reliance was placed upon the decision of this court in the case of Gujarat Enviro Protection he however shall not pass the final order without the permission of this court.

Summary

Issues:
1. Reopening of assessment based on alleged excess deduction claimed under section 10AA of the Income Tax Act, 1961.
2. Application of principle of merger in assessment order subject to appeal before Commissioner (Appeals).
3. Validity of reopening assessment after a lapse of four years without failure to disclose material facts.

Analysis:

Issue 1:
The petitioner challenged the reopening of assessment due to the alleged excess deduction claimed under section 10AA of the Income Tax Act, 1961. The Assessing Officer contended that the petitioner had claimed an excess deduction of Rs. 57,71,499, which was considered as income from unaccounted sources. However, the petitioner argued that the claim for exemption under section 10AA had been previously examined during a scrutiny assessment and was allowed by the Commissioner (Appeals). The petitioner asserted that the reopening of assessment was merely a change of opinion, as the issue had already been adjudicated by the authorities.

Issue 2:
Regarding the application of the principle of merger in the assessment order, the petitioner contended that since the order of the Assessing Officer was under appeal before the Commissioner (Appeals) and the claim for exemption under section 10AA was allowed, the principle of merger should apply. Citing a relevant case law, the petitioner argued that once an appellate authority allows a claim in its entirety, the Assessing Officer cannot reopen the same claim based on additional grounds. Therefore, the petitioner maintained that the reopening of assessment lacked validity in this context.

Issue 3:
The petitioner further argued against the validity of reopening the assessment after a lapse of four years without any failure on their part to disclose material facts. The petitioner emphasized that since the claim for exemption under section 10AA had been scrutinized earlier and allowed on appeal, there was no justification for reopening the assessment. By citing a previous court decision, the petitioner contended that the principles laid down in that case were directly applicable to the present situation, questioning the validity of the notice issued under section 148 of the Act.

In light of the submissions made by the petitioner, the court issued notice returnable on a specified date, allowing the respondent to proceed further but restraining them from passing a final order without the court's permission. The court granted direct service in this matter to ensure proper communication and adherence to the legal process.