Contact us   Feedback   Subscription   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2016 (8) TMI 217 - GUJARAT HIGH COURT

2016 (8) TMI 217 - GUJARAT HIGH COURT - TMI - Reopening of assessment - Held that:- As in the present case on hand, it is quite clear from the record that as and when required, the petitioner assessee has truly and fully supplied all material before the authority and scrutiny assessment has already been undertaken and even during the course of hearing also in details annexures were furnished indicating that the issue pertaining to brokerage as well as commission was forming part of the record an .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ent is without authority of law and therefore, requires to be quashed and set aside. - Decided in favour of assessee - SPECIAL CIVIL APPLICATION NO. 2854 of 2013 - Dated:- 19-7-2016 - MR. AKIL KURESHI AND MR. A.J. SHASTRI, JJ. FOR THE PETITIONER : MR B S SOPARKAR, ADVOCATE FOR THE RESPONDENT : MRS MAUNA M BHATT, ADVOCATE ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE A.J. SHASTRI) The petition is directed against issuance of notice under section 148 of the Income Tax Act, 1961 ( the Act for short) d .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ally pointed out by the petitioner about the issue pertaining to brokerage and commission during the hearing. The petitioner's return came to be selected for scrutiny and after scrutiny under section 143(3) of the Act, assessment order came to be passed on 27.12.2007. By that time, on 20.2.2006, notice was issued under section 143(2) of the Act and in compliance thereto and in response to the questionnaire which was furnished on 23.10.2007, the petitioner has replied again and furnished all .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

he department had filed appeal before Tribunal. The said appeal came to be dismissed on 22.10.2010 and pursuant thereto, the assessment which has been made on 27.12.2007 came to be final. It is the case of the petitioner that despite aforesaid circumstances, though issue has been deliberated and has been considered at detailed length, still however, after scrutiny assessment after a period of four years, notice dated 28.3.2012 came to be issued which is impugned in this petition. 2. In this back .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

as fully and truly submitted all materials which was available at his end. He further submitted that at the time of framing assessment under section 143(3) of the Act, relevant material has been considered and therefore, submitted that the authority has no jurisdiction to reopen the assessment under section 148 of the Act. He submitted that if ultimately that be allowed, the same would tantamount to change of opinion which according to series of decisions would be impermissible. He also submitte .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

reform an opinion. Learned counsel for the petitioner therefore, requested the Court not to allow such reopening and that too after a period of more than four years. His main limb of argument is that after a period of four years, the authority has only to look to the aspect whether the assessee has fully and truly disclosed all material at the time of assessment or not. In the background of these facts, he submitted that such exercise of power on the part of the respondent authority should be q .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

issuing notice under section 148 of the Act, proper reasons have been assigned as to why reopening should be allowed. She submitted that may be it is not the case of true and full disclosure at the time of assessment by the assessee but at the same time, she submitted that there is a case of omissions on part of the assessee not to disclose that aspect and therefore, justified that notice under section 148 of the Act is just and proper. She has drawn attention of the Court to page 25 form 2D in .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

8 of the Act and therefore, this is a clear case of escape of income chargeable to tax on account of omission on part of the assessee and therefore, she requested the Court to dismiss the petition. 4. Having heard learned counsel appearing on behalf of both the parties and before adverting to the contentions of respective parties, a reference is required to be made to the reasons which are supplied to the petitioner which are reproduced hereinbelow: Reasons for re-opening the assessment under se .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

okerage payment was required to be disallowed and added back to the total income of the assessee. In view of these facts, the undersigned has reason to believe that income chargeable to tax has escaped assessment within the meaning of section 147 of the Act. Hence, it is a fit case for re-opening the assessment within the meaning of section 147 of the Act. Issue notice under section 148 of the Act. 5. From the aforesaid material on record, it appears that attempt on part of the revenue is to reo .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

petitioner had truly and fully disclosed each and every material at the relevant point of time, learned counsel for the petitioner has drawn attention of the Court about the amount admissible under section 40A of the Act. He has drawn attention to form 3CT on page 32 and clause F in tabular form which indicates that the amount has already mentioned which is inadmissible under section 40A of the Act. Similarly, on page 41 in Annexure A , a specific figure has also been mentioned in column items .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e the authority which are part of the petition compilation on page 62, again learned counsel for the petitioner has drawn attention about figures which have been reflected pertaining to brokerage and commission and submitted that all the details have been specifically dealt with by the authority and therefore, it is not open on part of the respondent authority to reopen the assessment. From the reasons which are recorded as stated above, a specific reference about the fact that the authority has .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

if full and true disclosure is there on the part of the assessee. Here, from the record, it indicates that the petitioner has disclosed true and full materials before the authority not only with the return but, also at the time of scrutiny assessment. Therefore, this being the position, it is not permissible on part of the respondent authority to reopen the assessment under these circumstances. 6. Learned counsel for the petitioner has placed reliance on the decision of this Court in the case of .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ted above. On the basis of this material, simply because the authority has a different opinion, re-opening and that too, after a period of four years is not permissible. In the aforesaid decision, this Court has considered the decision in the case of Kewlvinator India Ltd. and has not permitted reassessment on change of opinion. Para-13 of the said decision is quoted hereinbelow: 13. Heavy reliance is placed on the decision in case of CIT v. Kelvinator India Ltd. Reported in (2010) 320 ITR 561 b .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

n Special Civil Application No.16074 of 2011 dated 2.12.2011 wherein also, the Court has specifically opined that in absence of any live link that the reasons recorded and the belief formed issue of notice for re-opening was treated as wholly invalid. Para-22 of the said judgment reads as under: 22. In the reasons recorded, there is not even a prima facie belief or disclosure that on what basis, the Assessing Officer has formed his reason to believe that such payment to the foreign supplied attr .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nd set aside. 8. Learned counsel for the revenue has relied on the decision reported in the case of 346 ITR 228 and has strenuously tried to submit that if there is an omission on part of assessee, then power of reopening is permissible. This decision cited by the learned counsel for the respondent authority pertains to reopening of assessment in the context of income falling under section 2(22)(e) of the Act regarding deemed dividend and in that context and background, the case was dealt with b .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version