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TMI Blog2016 (12) TMI 1197X X X X Extracts X X X X X X X X Extracts X X X X ..... ,63,815/. The case was selected for scrutiny and accordingly notice under Section 143(2) of the IT Act was issued and served upon the petitioner on 08.10.2007. That the assessee claimed the Security Transaction Tax (STT) rebate of Rs. 1,78,48,022/under Section 88E of the IT Act against the tax payabel under normal provision. That thereafter the assessment was finalized under Section 143(3) of the IT Act on 19.12.2008 and the Assessing Officer accepted the return of income as filed by the assessee without making any additions. [2.2] That thereafter the Assessing Officer issued the notice under Section 148 of the IT Act, which is dated 20.03.2009, by which the Assessing Officer sought to reassess the income for AY 200607. That again on 04.10.2010, the Assessing Officer issued the impugned notice (Annexure AII) under Section 148 of the IT Act. At the request made by the assessee, the Assessing Officer vide letter dated 14.07.2010 provided the reasons for reopening the assessment with regard to the notice dated 04.10.2010. That the assessee raised the objections vide reply dated 20.11.2010 raising the objections against initiating reassessment proceedings under Section 148 of the IT A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 607 deserves to be quashed and set aside on the aforesaid ground alone. In support of his above submissions, he has heavily relied upon the decision of this Court in the case of Adani Exports vs. Deputy Commissioner of Income Tax (Assessments) reported in (1999) 240 ITR 224. Shri Soparkar, learned advocate appearing on behalf of the petitioner - assessee has also relied upon the decision of the Division Bench of this Court in the case of Commissioner of Income Tax, AhmedabadIV vs. Shilp Gravures Ltd. reported in (2013)40 Taxmann 309 and in the case of Vodafone West Ltd. vs. Assistant Commissioner of Incometax reported in (2013) 37 Taxmann 158 (Gujarat). [3.2] Shri Soparkar, learned advocate appearing on behalf of the petitioner - assessee has further submitted that even the impugned notice dated 04.10.2010 under Section 148 of the IT Act deserves to be quashed and set aside on the ground that the same is a second / another notice for reopening as earlier the notice dated 20.03.2009 (20.03.2010) under Section 148 of the IT Act was already issued and pending determination. It is submitted that therefore unless and until the first notice under Section 148 of the IT Act is disposed of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers under Section 147 of the IT Act. The reason recorded to reopen are as under: "REASON FOR REOPENING A company filed its return of income for assessment year 200607 on 21.12.2006 declaring income of Rs. 618.64 lakh. The assessee company claimed STT (Security Transaction Tax) rebate of Rs. 178.48 lakh u/s.88E against the tax payable under normal provision and paid the difference amount of Rs. 8.44 lakh. The assessment was finalized u/s.143(3) on 19.12.2008 accepted the same income without making any addition. 1) It was noticed that assessee was having Book Profit of Rs. 430.17 lakh. However, assessee did not pay any tax on Book Profit as required u/s.115JB because tax payable u/s.115JB was more than that of tax payable as per normal provisions after giving rebate u/s.88E. As per provisions of Section 115JB in case of company "if the income tax payable on the total income as computed under this Act is less than 7.5% of its book profit, such book profit shall be deemed to be the total income of the assessee and tax will be payable on such deemed income." The comparison between tax payable under there sections was to be made at the stage of net amount of tax payable and not afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Form No.10DB & 10DC during the assessment, the assessee would not entitle the assessee company for claiming rebate u/s.88E. Thus, there was irregular grant of rebate of Rs. 17848022 u/s.88E. Thus, I have a reason to believe that the said income chargeable to tax has escaped from assessment within the meaning of section 147 of the IT Act, 1961." However, it is the specific case on behalf of the petitioner - assessee that the impugned reassessment proceedings are solely on the basis of the audit objections raised by the audit party and there is no independent formation of the opinion by the Assessing Officer that the income chargeable to tax has escaped the assessment. [5.1] On considering the audit objections raised by the audit party and the reasons recorded to reopen the assessable it appears that on the same ground on which the audit party raised the objection, the assessment for AY 200607 is sought to be reopened. From the material on record more particularly from the information received by the assessee, under the Right to Information Act, it appears that even subsequent to the issuance of the impugned notice under Section 148 of the IT Act, by communication dated 30.11. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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