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2016 (6) TMI 855 - GUJARAT HIGH COURT

2016 (6) TMI 855 - GUJARAT HIGH COURT - TMI - Reopening of assessment - Tribunal set aside the entire assessment proceedings only on the ground that reopening of the assessment was not permissible in law - Held that:- The conclusions of the Tribunal are completely opposed to the decision of Supreme Court in case of Assistant Commissioner of Income tax v. Rajesh Jhaveri Stock Brokers P. Ltd. reported in (2007 (5) TMI 197 - SUPREME Court ) wherein held So long as the ingredients of section 147 are .....

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disposal in accordance with law keeping all other contentions of both the sides open. By way of abundant caution, we clarify that it would be open for the assessee to challenge the validity of reopening on all grounds other than the one which we have found not sustainable. - Decided in favour of revenue - TAX APPEAL NO. 210 of 2016 With TAX APPEAL NO. 211 of 2016 - Dated:- 20-6-2016 - MR. AKIL KURESHI AND MR. A.J. SHASTRI, JJ. FOR THE APPELLANT : MR KM PARIKH, ADVOCATE FOR THE OPPEONENT : MR B S .....

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ing that the Assessing Officer ought not to have reverted to the issue other than the one in the reopening reasons recorded for the reassessment? 2. Facts may be noted from Tax Appeal No.210/2016 which pertained to assessment year 2004-2005 in which the return of income filed by respondent was accepted under section 143(1) of the Income Tax Act, 1961 without scrutiny. To reopen such assessment, the Assessing Officer issued notice dated 17.4.2007 and also supplied the reasons recorded by him to t .....

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ngs only on the ground that reopening of the assessment was not permissible in law. In this context, the Tribunal placed heavy reliance on decision of Delhi High Court in case of Commissioner of Incometax v. Orient Craft Ltd. reported in (2013) 29 taxmann. Com 392 (Delhi) and held as under : 11. We put a specific query to both parties as to Whether the hon ble jurisdictional high court has rendered any such decision treating an assessment u/s. 143(1) at par with a regular assessment u/s.143(3) f .....

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is not sustainable in the eyes of law. 3. In our understanding the conclusions of the Tribunal are completely opposed to the decision of Supreme Court in case of Assistant Commissioner of Incometax v. Rajesh Jhaveri Stock Brokers P. Ltd. reported in (2007) 291 ITR 500(SC). In context of reopening in case of original assessment being under section 143(1) of the Act, the Supreme Court held as under : In the scheme of things, as noted above, the intimation under section 143(1)(a) cannot be treated .....

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ct Taxes spell out the intent of the Legislature, i.e., to minimize the departmental work to scrutinize each and every return and to concentrate on selective scrutiny of returns. These aspects were highlighted by one of us (D. K. Jain J) in Apogee International Limited v. Union of India [(1996) 220 ITR 248]. It may be noted above that under the first proviso to the newly substituted , with effect from June 1, 1999, except as provided in the provision itself, the acknowledgment of the return shal .....

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y of tax applicable. By such application only recovery indicated to be payable in the intimation became permissible. And nothing more can be inferred from the deeming provision. Therefore, there being no assessment under section 143(1)(a), the question of change of opinion, as contended, does not arise. 4. In case of Inductotherm (India) P. Ltd. v. M. Gopalan, Deputy Commissioner of Incometax reported in (2013) 356 ITR 481 (Guj), Division Bench of this Court following the judgement in case of Ra .....

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ssessment under section 147 of the Act as compared to an assessment which was previously framed under section 143(3) of the Act, whether beyond or within four years from the end of the relevant assessment year, is substantially wider. The Apex Court in case of Assistant Commissioner of Income Tax v. Rajesh Jhaveri Stock Brokers P. Ltd., (supra) noticed such distinction and noted that the scheme of sections 143(1) and 143(3) of the Act is entirely different. 5. In case of Gujarat Power Corporatio .....

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