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2016 (8) TMI 1040 - CALCUTTA HIGH COURT

2016 (8) TMI 1040 - CALCUTTA HIGH COURT - TMI - Reopening of assessment - Held that:- The petitioner is not guilty of not disclosing fully and truly all material facts necessary for the relevant assessment year. In such circumstances, hold that invocation of provision of Section 148 by the Assessing Officer is unwarranted for the relevant assessment year. - WP No. 1158 of 2000 - Dated:- 20-7-2016 - Debangsu Basak, J. Mr. J.P. Khaitan, Sr. Adv. Ms. Nilanjana Banerjee Pal, Adv. For the petitioner .....

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80 of 2001[The Tinplate Company of India Limited-Versus-Joint Commissioner of Income Tax, Special Range-7, Calcutta]. Such writ petition was disposed of by an order dated May 5, 2016 by setting aside, the impugned notice under Section 148 as also the reasons provided with regard thereto. He has submitted that, the petitioner is not guilty of suppression of any fact before the Assessing Officer. The petitioner had filed the requisite return for the relevant year. Such return was assessed under Se .....

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the affidavit-in-opposition. He has referred to such order containing the reasons. He has submitted that the Assessing Officer has invoked Section 148 for looking into the four aspects of the return, namely technical knowhow fees, non-inclusion of excise duty, payment made to club and guest house expenses. He has referred to the balance- sheet of the petitioner as also the return filed and has submitted that, the petitioner had made full disclosure in respect of all the four heads to the Assessi .....

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48 of the Act of 1961. He has submitted that although the petitioner had preferred an appeal from the order under Section 143(3) of the Act of 1961, they were on other points than those disclosed in the reasons for invoking Section 148 of the Act of 1961. Learned Advocate for the Department has submitted that, the petitioner had filed an objection against invocation of Section 148 of the Assessing Officer. Without allowing the Assessing Officer to decide on the objection, the petitioner has rush .....

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the Supreme Court was of the view that, the Assessee should be asked to avail of his remedy before the Assessing Officer before coming to the the High Court by way of Writ under Article 226 of the Constitution in respect of invocation of Section 148 of the Income Tax Act, 1961. He has referred to 256 ITR 61 (Trivandrum Club -Versus- Assistant Director of Income Tax (Exemption) & Ors.) and has submitted that, the point of jurisdiction can also be taken before the Assessing Officer. In reply, .....

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226 of the Constitution of India in WP No. 1280 of 2001. I had found the invocation of the provisions of Section 148 of the Act of 1961 by the Assessing Officer to be bad in respect of the assessment year 1993-1994. One of the points involved in the impugned notice under Section 148 in WP No. 1280 of 2001 is the treatment of technical knowhow fees. I find from the record that the petitioner had disclosed all materials facts relating to technical knowhow fees before the Assessing Officer in the p .....

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s order of assessment under Section 143(3) of the Act of 1961. Although an appeal was carried against the order of assessment, the same related to heads other than those involved in the notice under Section 148. G.K.N.Driveshafts (India) Ltd (supra) has held that, the Assessing Officer is bound to furnish the reasons within reasonable time for invoking Section 148 of the Income Tax Act, 1961. On receipt of such notice, the Assessee is entitled to file objection to the issuance of such notice and .....

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