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2015 (11) TMI 493 - ITAT MUMBAI

2015 (11) TMI 493 - ITAT MUMBAI - TMI - Reopening of assessment - Held that:- A careful perusal of the return of income filed by the assessee would show that the assessee has declared income from capital gains and income from other sources. In the return of income it is nowhere mentioned that the assessee is a partner in the firm M/s Go Go International either in his individual capacity or as representative of M/s Sham Sunder Goenka Trust. Further, it is no where mentioned that the due date for .....

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conducting the affairs of the business or process of the firm of which he is a partner, meaning thereby, the individual should be a partner of the firm. In the instant case, the assessee is not a partner of the firm M/s Go Go international. He is only representing the actual partner. Accordingly, we are of the view that the AO was justified in holding that the assessee cannot be considered as working partner of M/s Go Go international. Even otherwise, the assessee has nowhere said that the accou .....

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s to assessment year 2003-04. 2. The revenue is aggrieved by the decision of ld. CIT(A) in holding that the reopening of assessment is not valid in law. 3. The facts relating to the issue are stated in brief. The assessee is an individual and he filed his return of income on 27.11.2003 declaring a total income of ₹ 1,82,509/-, besides declaring Long Term Capital Loss (LTCL) of ₹ 31,34,908/-. The assessment was completed under section 143(3) of the Act accepting the return filed by th .....

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suing notice on 26.3.2009 to the assessee. 4. In the reopened assessment proceedings, the assessee contended that he is a representative of M/s Sham Sunder Goenka Trust and the said trust was a partner in the partnership firm named M/s Go Go International. It was further submitted that due date for filing of return of income, in case of working partner of a firm whose accounts are required to be audited under this Act or under any other law for the time being in force is 31st October, 2003 and t .....

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ing of Explanation 4 to Section 40(b) of the Act and accordingly the due date for filing of income tax return should be taken as 30.11.2003. Accordingly, it was contended that the return of income filed by the assessee on 27.11.2003 should be considered as having been filed well within the stipulated time limit. Accordingly, it was contended that the assessee is entitled to carry forward the LTCL. The AO was not convinced with the said explanations of the assessee, since the assessee was only a .....

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sment year without pointing out that there is failure on the part of the assessee to disclose fully and truly all the material facts relevant to the completion of assessment, as required under the first Proviso to Section 147 of the Act. Accordingly, the assessee contended that the reopening is bad in law. The ld.CIT(A) was convinced with the said contentions and accordingly he annulled the assessment order. Aggrieved, the Revenue has filed this appeal before us. 6. We heard the parties and peru .....

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mes to his notice subsequently in the course of the proceedings under this section, or recompute the loss or the depreciation allowance or any other allowance, as the case may be, for the assessment year concerned (hereafter in this section and in sections 148 to 153 referred to as the relevant assessment year) : Provided that where an assessment under sub-section (3) of section 143 or this section has been made for the relevant assessment year, no action shall be taken under this section after .....

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43(3) of the Act and the assessment has been reopened after the expiry of four years from the end of the assessment year under consideration. Hence the first proviso to sec. 147 is applicable to the instant case. According to the ld. CIT(A), there is no failure on the part of the assessee to disclose all the material facts fully and truly necessary for completion of assessment and hence he has held that the reopening of assessment is not valid in law. However, a careful perusal of the return of .....

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