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SHREE RAM BUILDERS Versus ASSISTANT COMMISSIONER OF INCOME TAX (OSD)

2015 (5) TMI 221 - GUJARAT HIGH COURT

Reopening of assessment - reassessment proceedings on the basis of the audit objections raised by the audit party - Held that:- The issue involved in the present petition is squarely covered by the decisions of Shilp Gravures Ltd. (2013 (11) TMI 581 - GUJARAT HIGH COURT), in the case of Vodafone West Ltd. (2015 (5) TMI 216 - GUJARAT HIGH COURT) and in the case of Mayur Wovens Pvt. Ltd. (2014 (7) TMI 722 - GUJARAT HIGH COURT) by which a view is taken that if the reassessment proceedings are initi .....

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.Y. 2009-2010 are hereby quashed and set aside on the aforesaid ground alone. - Decided in favour of assessee. - SPECIAL CIVIL APPLICATION NO. 17581 of 2014 - Dated:- 1-4-2015 - MR. M.R. SHAH AND MR. S.H.VORA, JJ. FOR THE PETITIONER : UMAIDSINGH BHATI, ADVOCATE FOR THE RESPONDENT : MR NITIN K MEHTA, ADVOCATE JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1. Rule. Shri Nitin Mehta, learned advocate waives service of notice of Rule on behalf of the respondent. 2. In the facts and circumstances o .....

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eturn of income for A.Y.2009- 2010 which came to be finalized by order dated 09.12.2010. It appears that the assessee filed return of income declaring income of ₹ 43,87,671/- and by order of assessment, the income was assessed under Section 143(3) of the Act at ₹ 49,62,230/-. That thereafter, within a period of four years from the date of assessment year, the assessee was served with the notice under Section 148 of the Act on 04.03.2014. That the assessee asked for the reasons record .....

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ment proceedings is at the instance of the audit party and on the basis of the audit objections. That thereafter, vide communication dated 18.09.2014, the Assessing Officer has disposed of the objections against the reasons recorded for reopening of assessment proceedings. Hence, the petitioner - assessee has preferred the present petition under Article 226 of the Constitution of India challenging the initiation of reopening of the assessment for A.Y. 2009-2010. 5. Shri Umaidsingh Bhati, learned .....

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t the assessee did furnish all the particulars with respect to VAT expenses which came to be considered by the Assessing Officer and thereafter, disallowed the expenditure of ₹ 41,23,784/- under Section 43B of the Act. It is submitted that therefore, the reopening of assessment for the reasons recorded is nothing but change of opinion by the Assessing Officer and, therefore, the reopening of assessment is not permissible. 5.1. It is further submitted by Shri Bhati, learned advocate appeari .....

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the assessment, has deliberately not dealt with the same. It is submitted that even in the present petition also, though it is specifically mentioned that the reassessment proceedings are initiated on the basis of the audit objections raised by the audit party, even in the affidavit-in-reply, the same has not been dealt with by the Department. Relying upon the decision of this Court in the case of Commissioner of Income-Tax, Ahmedabad-IV V/s. Shilp Gravures Ltd. reported in (2013)40 Taxmann 309 .....

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the learned advocate appearing for the petitioner on the issue whether the reassessment proceedings for the reasons recorded can be said to be change of opinion by the Assessing Officer or not?, after considering the material on record, we were not satisfied that the reassessment proceedings for the reasons recorded can be said to be change of opinion. 6.1. However, the petition is to succeed on the second ground i.e. the contention of the learned advocate for the petitioner that the reassessmen .....

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s not based on the opinion of the respondent. However, to satisfy ourselves whether the reassessment proceedings have been initiated solely at the instance of the audit party and solely on the audit objections, we called for the original file from the office of the Assessing Officer. Shri Mehta, learned counsel appearing for the Revenue has produced the relevant files from the office of the Assessing Officer. On perusal of the files and notings and even reply filed by the Assessing Officer, it a .....

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p the objections. Under such factual aspects, the present petition is required to be considered. 6.2. Not only that, even subsequently also, i.e. even after the initiation of the reassessment proceedings, by communication dated 23.01.2015, the Assessing Officer- Deputy Commissioner of Income Tax Circle-3(3), Ahmedabad has tried to support/justify the original assessment order and has categorically stated that the audit objections are not acceptable as the objections are raised on presumption and .....

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