TMI Blog2016 (12) TMI 873X X X X Extracts X X X X X X X X Extracts X X X X ..... e not satisfied, the impugned reopening proceedings deserves to be quashed and set aside. - Decided in favour of assessee - SPECIAL CIVIL APPLICATION NO. 17291 of 2016 - - - Dated:- 6-12-2016 - MR. M.R. SHAH AND MR. B.N. KARIA, JJ. FOR THE PETITIONER : MR B S SOPARKAR, ADVOCATE FOR THE RESPONDENT : MRS MAUNA M BHATT, ADVOCATE ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH) [1.0] RULE. Ms. Mauna Bhatt, learned advocate waives service of notice of rule on behalf of the respondent. In the facts and circumstances of the case and with the consent of the learned advocates appearing on behalf of the respective parties, the present petition is taken up for final hearing today. [2.0] By way of this petition under Article 226 of the Constitution of India the petitioner has prayed for an appropriate writ, order or direction to quash and set aside the impugned notice dated 29/03/2016 (Annexure A) by which the Assessing Officer in exercise of powers under Section 147 of the Income Tax Act has sought to reopen the assessment for the Assessment Year 2009-10. [3.0] The facts leading to the present Special Civil Application in a nutshell are as under; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as Rs.NIL. The LTCG was neither declared in the original return of income filed on 12/03/2010 nor credited to income expenditure account as well as capital account. It is pertinent to mention here that the assessee had filed her return of income on 12/03/2010 i.e belatedly and also failed to submit revised return before prescribed limit to claim exempt income. Therefore, the claim of exempt income of ₹ 1,38,25,000/- has to be disallowed and added back to the total income of the assessee. Further, on verification of capital account of F.Y. 2008-09 it is seen that on 01/04/2008 opening balance of capital is ₹ 1,69,80,499/- where as per balance sheet of A.Y.2007-08 capital balance as on 31/03/2008 was ₹ 2,05,63,132/-. Thus, there is inconsistency of capital balance as mentioned in capital account of F.Y. 2008-09 and F.Y. 2007-08. Therefore, differential amount on capital account of ₹ 35,82,633/- (20563132 16980499) is required to added to the total income of the assessee. The amount of such disallowance /addition is worked out at ₹ 1,74,07,633/- (Rs.1,38,25,000 + 35,82,633 = 1,74,07,633) In view of the above facts, I have reason to beli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no independent application of mind and /or independent formation of opinion to reopen the assessment beyond four years. [4.1] It is further submitted that the petitioner assessee had submitted all the requisite details required for the assessment proceedings, more particularly, while claiming the exemption while submitting the revised computation of income and thereafter the Assessing Officer granted the exemption. It is submitted that the reassessment proceedings have been initiated on the ground that without filing the revised return of income the Assessing Officer ought not to have granted exemption. It is submitted that therefore according to the subsequent Assessing Officer the earlier Assessing Officer wrongly granted the exemption. It is submitted that on the aforesaid ground there cannot be any reopening of the assessment beyond four years. It is submitted that mere wrong passing of the order by the Assessing Officer and /or mere granting the exemption wrongly, there cannot be any reassessment proceedings beyond four years. It is submitted that for invoking the provisions under Section 147 of the Income Tax Act and for reopening of the assessment beyond four years th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perusal of the file she has candidly admitted and / or conceded that on the aforesaid, audit party raised the objection, to which, the Assessing Officer replied and in fact the Assessing Officer objected to the query raised by the audit party and requested to drop such objection / query. Making the above submissions, it is requested to dismiss the present petition. [6.0] Heard the learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that the assessment for the Assessment Year 2009- 10 is sought to be reopened beyond a period of four years on two grounds. The first ground is with respect to the wrong grant of exemption on long term capital gain by the Assessing Officer and the second ground is with respect to inconsistency of capital balance. Now so far as the second ground to reopen the assessment is concerned, on perusal of the file produced by Ms. Bhatt, learned advocate appearing on behalf of the revenue, it appears that the audit objection was raised with respect to the same. The Assessing Officer not only objected to the same and has justified the assessment order and in fact while opposing such audit object ..... X X X X Extracts X X X X X X X X Extracts X X X X
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