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TMI Blog2018 (2) TMI 354X X X X Extracts X X X X X X X X Extracts X X X X ..... inal hearing today. 2. By this petition under Article 226 of the Constitution of India, the petitioner has challenged the notice dated 20.03.2017 issued by the respondent under section 148 of the Income Tax Act, 1961 (hereinafter referred to as "the Act") as well as the assessment order dated 03.10.2017 passed under section 143(3) read with section 147 of the Act for assessment year 2012-13. 3. The petitioner assessee is a public charitable trust registered under the Bombay Public Charitable Trusts Act, 1950. The assessee filed its return of income for assessment year 2012-13 declaring nil income on 26.03.2013. By an order dated 26.03.2015, the assessment came to be framed under section 143(3) of the Act. However, subsequently, by the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the total income of the petitioner. Reference was made to the order sheet dated 05.03.2015 made during the course of the assessment proceedings a copy whereof has been annexed along with the petition, to submit that during the course of the assessment proceedings under section 143(3) of the Act, the petitioner was specifically requested to show cause why carry forward deficit of the earlier year to the extent of Rs. 19,59,665/, should not be disallowed. In response thereto, the petitioner had given a detailed reply vide letter dated 09.03.2015 and mainly contended that the said issue had been decided in favour of the assessee by five different High Courts as well as the jurisdictional High Court. Accordingly, after considering the repl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the jurisdictional High Court in the case of Sahkari Khand Udyog Mandal Ltd. v. Assistant Commissioner of Income Tax, [2014] 46 taxmann.com 69 (Gujarat). It was submitted that the Assessing Officer was not justified in not disposing of the objections inasmuch as this court in that decision has nowhere laid down that if the objections are submitted after some delay, the Assessing Officer is not required to comply with the directions issued by the Supreme Court in the case of GKN Driveshafts (India) Limited (supra). 5.3 In conclusion, it was submitted that the reopening of the assessment based upon a mere change of opinion deserves to be quashed and set aside and consequentially, the assessment order passed pursuant thereto, which is al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ublic charitable trust registered under the Bombay Public Charitable Trust 1950, the is also registered u/s. 12A vide register No.CITII/ SRT/Tech/104/S22/ 200708, dated 22.04.2008 and is having approval exemptions u/s. 80G(5) of the IT Act. However, on verification of the record it is noticed that after allowing the deficit of earlier years of Rs. 90,59,665/for A.Y. 201213 which require to be disallowed and added to the total income of the assessee. In view of the above, scrutiny of assessment and the computation sheet revealed that the assessee had adjusted brought forward deficit of Rs. 90,59,665/from the receipt of the year and arrive at the taxable income at Nil. The income of the trust is not computed on the principal of business in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the earlier year to the extent of Rs. 90,59,665/had been gone into by the Assessing Officer and the same had been allowed. Thus, the Assessing Officer having applied his mind to the issue and thereafter, having allowed the assessee to carry forward the deficit of earlier year, it is evident that the reopening on the very same issue is based upon a mere change of opinion, which renders the impugned notice unsustainable. 10. In the light of the fact that the impugned notice is rendered unsustainable on the ground of it being based on mere change of opinion, it is not necessary to enter into other contentions as regards the notice being based upon audit objections as well as regarding the issue being covered by the decisions of the diffe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... frame for the Assessing Officer to dispose of the objections would apply only if the assessee raises objections within the time provided hereinabove. This, however, would not mean that if in either case, the assessee misses the time limit, the procedure provided by the Supreme Court in the case of GKN Driveshafts (India) Limited (supra) would not apply in such cases." 12. Thus, it is clear that the court has set out a time line for submission of objections and deciding the same. However, at the same time, the court has also clarified that it would not mean that if in either case, the assessee misses the time limit, the procedure provided by the Supreme Court in the case of GKN Driveshafts (India) Limited (supra) would not apply. It only me ..... X X X X Extracts X X X X X X X X Extracts X X X X
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