TMI Blog2012 (11) TMI 986X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing Officer within a period of four years from the end of relevant assessment year, and when Assessing Officer had not formed any opinion in the original assessment with respect to taxability of the amount in question, such notice cannot be stated to be without jurisdiction or invalid - In the result, the petition fails and is dismissed. - Decided against the assessee. - Special Civil Application No. 6318 of 2009 - - - Dated:- 27-8-2012 - Akil Kureshi and ms. Harsha Devani, JJ. Bandish Soparkar and Mrs. Swati Soparkar for the Petitioner. Mrs. Mauna M. Bhatt for the Respondent. JUDGMENT Akil Kureshi, J. - The petitioner has challenged a notice dated 25.7.2008 issued by the Assistant Commissioner of Income Tax b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer while discussing the issue elaborately in assessment order treated this as transaction and taxed the entrance fee as sale of membership. The Assessee has received the amount of Rs. 5,56,000 in A.Y. 2004-05 under the head membership fee (Schedule A of Balance Sheet) and has treated it as capital receipt not offered for taxation. The same being transaction with the members on account of sale of membership is to be taxed in hands of company, because the members are not the share holders. Therefore, there is reason to believe that an amount of Rs. 5,56,000 has escaped assessment for A.Y. 2004-05 as the AO has not given any opinion on the same. The assessment is required to be reopened for the above reasons by issue of notice u/s 148." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received total entrance fees of Rs. 5,56,000/- during the year relevant to the assessment year 2004-05, was pointedly brought to the notice of the Assessing Officer. Despite which, he made no addition on such figure in the final order of assessment. He should, therefore, be deemed to have formed an opinion which in absence of any new material, cannot be permitted to be changed. 3.2 Counsel submitted that even if the original query of the Assessing Officer may not be pertaining to the question of treatment of the entrance fees received from the members during the year, the assessee's reply thereto and the material produced along with such reply, was sufficient for the Assessing Officer to tax such income if he was of the opinion that such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should be permitted. Counsel relied on a recent decision of the Division Bench of this Court in case of Gujarat Power Corpn. Ltd. v. Asstt. CIT in [Special Civil Application No.29792 of 2007] dated 30.7.2012. 5. Having, thus, heard the learned counsel for the parties and having perused the documents on record, we may recall that the present is a case where assessment is sought to be reopened within a period of four years from the end of relevant assessment year. In that view of the matter, the additional requirement that the income chargeable to tax has escaped assessment due to failure on the part of the assessee to disclose fully and truly all material facts, would not have to be satisfied. The main question is whether during the origi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : "3. Details of members including name, address telephone numbers from whom the membership fees is received is herewith enclosed. During the year under consideration, we have received Rs. 5,56,000/- by way of membership entrance fees." 7.2 Along with such letter dated 16.6.2006, the petitioner placed certain documents before the Assessing Officer. Upon perusal of the original file of assessment, we find that the annexure which has been produced by the petitioner before us along with the said letter dated 16.6.2006, was not filed before the Assessing Officer. The assessee had, however, supplied the names, membership numbers and the telephone numbers and addresses of the members from whom the entrance fees were collected during the yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount without assigning reasons, cannot be seen as an act on his part of having formed an opinion with respect to non-taxability of such an amount. 9. Under the circumstances, we are unable to concur with the submissions of the learned counsel for the petitioner that in the facts of the case, the Assessing Officer must be seen to have formed an opinion with respect to taxability of receipt of Rs. 5,56,000/- towards entrance fees. When the notice has been issued by the Assessing Officer within a period of four years from the end of relevant assessment year, and when we find that the Assessing Officer had not formed any opinion in the original assessment with respect to taxability of the amount in question, such notice cannot be stated to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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