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2016 (12) TMI 1555 - GUJARAT HIGH COURT

2016 (12) TMI 1555 - GUJARAT HIGH COURT - TMI - Validity of reopening of assessment - reasons to believe - non entitlement to writing of premium and claiming notional loss also on revaluation of year end - Held that:- There is no allegation whatsoever that there was any failure on the part of the assessee in disclosing true and correct facts necessary for assessment. From the reasons recorded, it appears that according to the AO though the assessee was not entitled to both the benefits simultane .....

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hat view of the matter the condition precedent to assume jurisdiction under Section 147 of the Act to reopen the assessment beyond the period of four years, more particularly, contained in proviso to Section 147 of the Act are not satisfied. - Decided in favour of assessee. - SPECIAL CIVIL APPLICATION NO. 19708 of 2016 - Dated:- 13-12-2016 - MR. M.R. SHAH AND MR. B.N. KARIA, JJ. FOR THE PETITIONER : MR MANISH J SHAH, ADVOCATE FOR THE RESPONDENT : MRS MAUNA M BHATT, ADVOCATE (PER : HONOURABLE MR. .....

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8 of the Income Tax Act (Annexure D), by which, the Assessing Officer has sought to reopen the assessment for AY 200910 beyond the period of four years. 3.0. The facts leading to the present petition in nutshell are as under: 3.1. That the assessee is a Cooperative Bank registered under the Gujarat Cooperative Societies Act. The assessee filed return of income for AY 200910. Thereafter, revised return of income was filed. That along with return of income / revised return of income, the assessee .....

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the Assessing Officer has issued the impugned notice under Section 148 of the Act, by which, the Assessing Officer has sought to reopen the assessment for AY 200910. At the request of assessee, the Assessing Officer supplied the reasons recorded to reopen the assessment which reads as under: In this case, the assessee has filed its return of income on 21.09.2009 showing total income of ₹ 1,05,28,860/and thereafter filed revised return of income on 06.10.2009 declaring income at ₹ 95, .....

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7; 1,87,98,000/for Government Securities Premium Ret of Amortization, and provisions of ₹ 1,17,91,812/for Government Securities Premium Amortization and simultaneously claimed Investment Depreciation of 29,02,076/on same securities. When premium paid is being written off, again the same security cannot be revalued again on the same date to claim loss on revaluation because under any circumstances, bank will get principal amount on its maturity. Both the benefits cannot be claimed simultane .....

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e have been disposed of. The Assessing Officer has not agreed with the objections raised by the assessee. Hence, the assessee has preferred present Special Civil Application under Article 226 of the Constitution of India. 4.0. Shri J.P. Shah, learned counsel appearing on behalf of the assessee has vehemently submitted that the impugned Notice under Section 148 of the Act is bad in law and beyond the scope and ambit of Section 147 of the I.T Act. 4.1. It is vehemently submitted by Shri Shah, lear .....

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ecessary material/information/particulars asked by the Assessing Officer, which were necessary for the assessment and thereafter having satisfied the Assessment Officer framed the scrutiny assessment. It is submitted that therefore, it cannot be said that there was any failure on the part of the assessee in not disclosing true and correct facts necessary for assessment. It is submitted that therefore, the impugned notice for reopening the assessment for 200910 cannot be sustained and same deserv .....

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ebited ₹ 20,93,398/to profit and loss account on account of provision for overdue interest and it was merely a provision and therefore, it ought to have been disallowed. The Assessing Officer is justified in reopening the assessment. 5.2. It is further submitted that it was also noticed by the Assessing Officer that the assessee made provisions of ₹ 1,87,98,000/for Government Securities Premium Ret. of amortization and provisions of ₹ 1,17,91,812/for Government Securities Premi .....

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ax more than ₹ 1 lakhs as escaped assessment for the year under consideration, the Assessing Officer is justified in issuing the impugned notice and reopening the assessment. Making above submissions, it is requested to dismiss the present petition. 6.0. Heard learned advocates appearing for the respective parties at length. 6.1. At the outset, it is required to be noted that the assessment for AY 20092010 is sought to be reopen by the impugned Notice under Section 148 of the Act, beyond t .....

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ed, there cannot be any reopening of assessment beyond the period of four years. Even there is a direct decision of the Apex Court on this issue, rendered in case of Kelvinator of India Limited [Supra]. 6.2. In the present case, the reasons recorded to reopen the assessment for AY 20092010, which is beyond the period of four years, are reproduced herein above. 6.3. From the reasons recorded, it appears that there is no allegation whatsoever that there was any failure on the part of the assessee .....

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