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2016 (9) TMI 1614 - HC - Income TaxValidity of reopening of assessment u/s 147 - balcony coverage charges known as balcony premium paid to the Surat Municipal Corporation - HELD THAT:- It appears that the reasons for which reopening is contemplated is with respect to balcony premium to the extent of ₹ 79.95 lakhs (rounded off). The material on record indicates that the said issue during the process of assessment had been gone into. The learned counsel has referred to a communication dated 25.7.2007 in which the query was put up came to be answered and it has been stated by the assessee that the said amount has been paid to the Surat Municipal Corporation and the copy of acknowledgment of the said balcony premium is also attached to the communication dated 25.7.2007. It is further emerging from the record that the account with respect to M/s. Shanti Enterprise i.e. assessee has also indicated in it the very amount of balcony premium fee which is evident from page 15 of the compilation of the petition. Even the said figure is also reflected from the other relevant documents. Issue relating to the balcony premium was the subject matter of assessment proceedings and, therefore, reopening on this issue, if permitted, the same would be based upon the change of opinion which is impermissible and, therefore, it also appears to us that the impugned notice is not valid. The contention of the Revenue that the impugned action is within the period of four years and, therefore, it is always open for the authority to reopen the assessment cannot be accepted. Simply because the action is within the period of four years would not give a leverage to the authority to just go on repeating the exercise of examining the issue which has already been gone into. There appears to be no tangible material distinct from what was made a part of the assessment proceedings and, therefore, reopening of the assessment is not permissible. The proposition of law is aptly clear, as stated above and, therefore, in our opinion, permitting the authority to reopen the assessment would not be valid. We cannot shut our eyes over the aforesaid circumstance simply because it is within the period of four years and having regard to the decisions of Apex Court which propounded that the Courts would be failing to perform their duty, if reliefs were refused without adequate reasons, we see that the action on the part of the respondent authority is impermissible in view of aforesaid set of circumstance. We are of the opinion that the action of reopening of assessment is invalid and not permissible in view of settled position of law and, therefore, relief sought deserves to be granted by quashing and setting the notice for reopening and, therefore, is hereby quashed and set aside.
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