Home Case Index All Cases Income Tax Income Tax + HC Income Tax - 2017 (9) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2017 (9) TMI 669 - HC - Income TaxReopening of assessment - without prior approval of the higher authority - return to certificate holders - Held that:- Such ground was considered by the assessing officer in his order of assessment. In fact, he had required further evidence and documents from the assessee prior to the order of assessment to which the petitioner had replied furnishing the same. The assessing officer had taken a particular view on the subject. Although no appeal is pending against the portion of the order with regard to return to certificate holders, in my view, the reasons, not specifying the tangible new materials available with the department to allege that the petitioner is guilty of not making a true and proper disclosure, is not sufficient to reopen the assessment. In absence of such material, the authorities have incorrectly applied the principles laid down in Calcutta Discount Pvt. Ltd. (1960 (11) TMI 8 - SUPREME Court) and followed subsequently for the purpose of reopening the assessment order on that ground. Reopening the assessment is commission, incentive and other payment made to the field officers. The petitioner had claimed the same as an expenditure in its return. Such claim was disallowed by the assessing officer in the order of assessment. An appeal is pending against such portion of the order of assessment. The appeal is yet to be disposed of. Therefore, on the parity of reasoning for the first ground as noted above, and in addition thereto, in view of the fact that, if Section 148 is allowed to continue, it may result in conflict in decision between the assessing officer and the appellate authority on the same head, it would be appropriate to hold that the invocation of Section 148 for the same is improper. Therefore the reasons for invocation of Section 148 of the act of 1961 on the second ground also fails. Treatment of the suspense account - Held that:- The claim made on this head was disallowed by the assessing officer to the extent of 50%. Again the assessing officer before passing the order of assessment had called upon the petitioner to furnish information with regard thereto. The petitioner had furnished such information in its reply. In addition, the petitioner had written a letter dated January 17, 2002 to the assessing officer. In such factual matrix it cannot be said that, the department has any new tangible material to hold that the petitioner did not make a true and faithful disclosure in its account before the assessing officer. The fourth ground for reopening as given in the reasons is deferred obligation. Claim as an expenditure made on this account before the assessing officer was disallowed in its entirety. Therefore again on the parity of reasoning as noted in respect of the earlier grounds, the reason fails. The contention of the department that, the order of assessment being made subsequent to the invocation of Section 148 and that in respect of such order of assessment, the petitioner having a statutory alternative remedy available, the writ petition should be dismissed. This is the view expressed in Chhabil Dass Agarwal (2013 (8) TMI 458 - SUPREME COURT). However the fact scenario in the present case is different than that in obtaining Chhabil Dass Agarwal (supra). In that case, the Supreme Court notices that two notices under Section 148 of the Act of 1961 for two different assessment years went unrepresented and unreplied to by the assessee. Notices under Section 143(2) in respect of those assessment years were also not attended to by the assessee. It is after receipt of the orders of assessment that, the assessee sought to approach the Writ Court under Article 226 questioning the validity and legality of the notices under Section 148 as also the order of assessment. In such context, the Supreme Court is of the view that, once an order of assessment is passed and the assessee has a statutory alternative remedy, the Writ Court need not interfere therein, unless it is established that, there is a breach of fundamental right of the petitioner or that authorities have acted wholly without jurisdiction. In the present case, the writ petitioner approached the Writ Court immediately upon receipt of the order dated September 22, 2006. The order of assessment is much later. It is dated December 29, 2006. The department claims that, the interim order passed in the writ petition permitted the department to pass an order of assessment and so it has done so. The writ petitioner claims that, the writ petitioner was not served with the notice under Section 143(2) of the Act of 1961. The department contends that the appropriate notice was served upon the assessee. The fact remains that, the writ petition was filed immediately after the order dated September 22, 2006. The writ petition is pending since then. As noted above, the department did not have necessary material before it to invoke Section 148 of the Act of 1961 in respect of the assessment year concerned.
|