TMI Blog2016 (7) TMI 328X X X X Extracts X X X X X X X X Extracts X X X X ..... ndependent and the reasons recorded for reopening have to be independently examined in the context of the Assessee whose Assessment is sought to be reopened. The fourth submission of the Petitioner that income which is alleged to have escaped Assessment has already been disclosed in the return of the Society and tax paid on the same, therefore no income chargeable to tax, has escaped Assessment is not sustainable. This for the reason that it is the prima facie view of the Revenue that the deduction claimed under Section 80P of the Act by the Society as a Cooperative is not available to the Petitioner Trust. Thus the chargeability to tax has to be seen in the context of the Assessee whose income it is. Last submission of the Petitioner the principle of consistency applies is concerned, it is to be noted that the undisputed position is that no scrutiny Assessment was carried out in the case of the Petitioner Trust. The return was processed under Section 143(1) of the Act. In that view of the matter, there has been no occasion to consider the taxability of interest income and income from the house property on merits in the hands of the PetitionerTrust. Thus, the Rule of Consiste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the impugned notice as communicated to the Petitioner, are as under: The assessee Jolly Maker 1 Premises Coop Society Ltd. (AAAJJ0005E) has filed return of income for AY 2008-09 in the status of Cooperative Society declaring total income of ₹ 5,09,05,320/which comprises income from House property at ₹ 5,18,29,574/income from business or profession at ₹ 99,01,239/and income from other source at ₹ 1,75,61,811/Deduction u/s.80P has been claimed at ₹ 1,84,86,065/. Further, following information has been provided on record Jolly Maker 1 Premises Cooperative Society Ltd., as Trustee is representative assessee under sections 160/161/166 of the IT Act,1961 in respect of property income received/ entitled to be received on behalf and for the benefit of beneficiaries with determinate shares for property situated at Nariman Bhavan. The property income is independent from that of the Society and separate accounts are being maintained of the Society and the property held upon trust. However, technically, the Nariman Bhavan property continues in the name of the Society and is held in a fiduciary capacity by the Society since inception. Until separate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he interest income is of trust and not of society. As the rental income and interest income is of the trust, therefore both these incomes are to be considered in the case of trust, therefore both these incomes are to be considered in the case of trust and society being the trustee, was required to be submit separate return for income of trust, in the representative capacity. 3. I, therefore, have reasons to believe that on account of failure to file return of income in representative capacity for income pertaining to trust. Income chargeable to tax to the extent of ₹ 7,04,16,964/( rental income of ₹ 518,29,574/and interest income of ₹ 185,87,360/) has escaped assessment. Issue notice u/s. 148 for AY 2008-09. 5 The Petitioner Trust by its letter dated 26th October, 2015 objected to the impugned reopening notice dated 16th March, 2015. The Assessing Officer by an order dated 27th November, 2015 rejected the Petitioner Trust's objections to the impugned notice. This rejection of objections led to filing of this Petition and an adinterim stay of the impugned notice was granted. 6 Mr. Andhyarujina, learned Sr. Counsel in support of the Petition submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the validity of the impugned notice dated 15th March, 2015. 8 So far as first and second submissions of the Petitioner viz: change of opinion and no failure to disclose all facts are concerned, both are unsustainable. This is for the reason that no scrutiny Assessment was done of the Petitioner Trust for the subject Assessment Year. The return of income was only processed under Section 143(1) of the Act. Therefore, there was no formation of opinion on the part of the Assessing Officer for change of opinion to take place. Similarly, the condition precedent in case of notices issued beyond four years of the end of the relevant Assessment Year viz: the failure to disclose truly and fully facts, would have no application as no Assessment under Section 143(3) of the Act, has been done in this case. 9 So far as the third submission of the Petitioner viz: a notice on identical grounds issued to the Society for the subject Assessment Year being withdrawn, it does not/ cannot enure for the benefit of the Petitioner Trust. Each Assessee is independent and the reasons recorded for reopening have to be independently examined in the context of the Assessee whose Assessment is sought to b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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