TMI Blog2009 (12) TMI 629X X X X Extracts X X X X X X X X Extracts X X X X ..... ed (2008 - TMI - 31844 - GUJARAT HIGH COURT)] - Held that:- no infirmity in the issuance of the reopening notice by Mr. Katiyar. Even otherwise, there is no evidence before us which even remotely suggests that Mr. Katiyar, before issuing notice, has not recorded his satisfaction. These petitions are merely based on apprehensions. Notice of reopening of assessment cannot be challenged merely on apprehension, decision of this Court in the case of Hynoup Food and Oil Industries Limited (supra) has no application, and on this ground, the notice of reopening cannot be held to be invalid. - 13060 to 13062 of 2009 - - - Dated:- 14-12-2009 - K.A. Puj and Rajesh H. Shukla, JJ Tushar P. Hemani for the Appellant None for the Respondent JUD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, is a different officer having designation Deputy Commissioner of Income Tax, Circle-I, Ahmedabad. He has therefore submitted that if the reasons are recorded by different officer, notice is issued by different officer and re-assessment is being framed by an altogether different officer, the reassessment is bad in law and hence, the petition deserves consideration by this Court. Mr. Hemani has further submitted that the main ground of re-opening, as stated in the reasons recorded, appears to be non-application of provisions of Section 40A(3) of the Act on the cash purchases made by the petitioner from two concerns viz. M/s Bhoomi Corporation and M/s Shyam Steel. It is the case of the respondent that 20% of this amount is required to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice and still while dealing with these objections, the respondent has not given any finding on these issues and straightway rejected those objections. He has therefore submitted that the impugned order rejecting the petitioner's objections, passed by the respondent is contrary to the law laid down by the Apex Court in case of GKN Driveshafts (India) Ltd. v. ITO and Others, 259 ITR 19 (SC). We have heard learned counsel appearing for the petitioner and gone through the notice of reopening, reasons recorded, petitioner's objections filed before the respondent and the impugned order passed by the respondent while rejecting the petitioner's objections. We have also considered the judgment of this Court in the case of Hynoup Food and Oil Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and categorically stated that the payment to parties were non genuine and money has been received back by the petitioner. He has further recorded that during the course of statement under Section 131 of the Income Tax Act dated 12.12.2007, Mr. Mehul N. Shah, the Director of the petitioner company, has reiterated that the company has received bills from various entities and actual material received from other parties. He has also recorded that the petitioner issued cheques to parties based in Ahmedabad to give bogus bill and that the company had resorted to this mode of purchase in order to save 3% Central Sales Tax on purchases. Considering these aspects of the matter, the respondent has taken the view that the objections filed by the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are available to the petitioner. In this view of the matter, so far as this issue is concerned, the Court does not find any substance. The second legal issue which is raised by the petitioner is that the person who records the reasons, the person who issues the notice of reopening and the person who has to pass the assessment order are different and hence the same is not permissible under the law. This Court in case of Hynoup Food and Oil Industries Limited (supra) took a view that Successor Assessing Officer cannot issue notice under Section 147 of the Act on the basis of the reasons recorded by Predecessor Assessing Officer. Because the reason to believe has to be of the officer concerned, viz. the officer issuing the notice under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore issuing notice, has not recorded his satisfaction. These petitions are merely based on apprehensions. Notice of reopening of assessment cannot be challenged merely on apprehension. So far as the second objection on this very issue that the respondent, who has to now frame the assessment is different and hence on this ground notice is invalid, is concerned, there is no substance in this objection as the respondent has himself observed in his order that the reasons were recorded by the Income Tax Officer, Ward-1(4), Ahmedabad and the reassessment is intended to be completed by him. He has further stated that the case has been transferred to him as he had jurisdiction over all company cases having returned income/loss in excess of Rs.10 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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