TMI Blog2018 (2) TMI 354X X X X Extracts X X X X X X X X Extracts X X X X ..... ding the objections raised by the petitioner. In any case, since the notice, which is the foundation for the assessment order, itself is held to be unsustainable, the assessment order would also be rendered unsustainable. - Decided in favour of assessee. - Special Civil Application No. 20513 of 2017 - - - Dated:- 25-1-2018 - Ms. HARSHA DEVANI AND MR. A. S. SUPEHIA, JJ. For The Petitioner : MR HARDIK V VORA, ADVOCATE For The Respondent : MR MR BHATT,SENIOR ADVOCATE with MRS MAUNA M BHATT, ADVOCATE ORAL JUDGMENT ( PER : HONOURABLE MS.JUSTICE HARSHA DEVANI) 1. RULE . Mrs. Mauna Bhatt, learned senior standing counsel waives service of notice of rule on behalf of the respondent. With the consent of the learned advocates appearing on behalf of the respective parties, the matter is taken up for final 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner 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 reply of the petitioner, the assessment order came to be passed without making any additional/disallowance on that ground. It was submitted that therefore, the reopening of the assessment is merely based upon a change of opinion. 5.1 Next it was submitted that even on merits, the issue on which the assessment is sought to be reopened is also decided in favour of the assessee by a judgment of the jurisdictional High Court. Moreover, the assessment is sought to be reopened on the basis of an audit objection and not pursuant to any formation of belief on the part of the Assessing Officer and therefore, also the reopening of assessment is invalid. 5.2 Next, it was submitted that though pursuant to the receipt of the reasons recorded, the petitioner has raised objections in respect thereto, the Assessing Officer in flagrant disregard of the decision of the Supreme Court in the case of GKN Driveshafts (India) Limited v. Income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rties and has perused the record of the case. 8. At the outset, reference may be made to the reasons recorded by the Assessing Officer for reopening the assessment which read as under: Reasons recorded for reopening the assessment u/s 147 of the I.T. Act in the case of above mentioned assessee . In this case, the assessment u/s. 143(3) of the I.T. Act was completed on 26.03.2015, determining income at Rs. Nil. The assessee trust is a public 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 ₹ 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 ₹ 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 princip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter is that in this case the assessee had filed objections in response to the reasons recorded by the Assessing Officer. While it is true that such objections were filed belatedly after a considerable time, however, the same had been filed before the assessment order came to be framed. Once the objections had been submitted by the petitioner, in view of the decision of the Supreme Court in the case of GKN Driveshafts (India) Limited (supra) , the Assessing Officer was duty bound to decide the same by a reasoned order. In the present case, the Assessing Officer has placed reliance upon the decision of Sahkari Khand Udyog Mandal Ltd. (supra) while holding that the objections raised by the assessee at a belated stage beyond the time framed stipulated by the court in the above decision need not to be entertained. In this regard it may be germane to refer to the following observations made by the court in the above referred decision, the relevant portion whereof reads as under: 4. This is being done in order to ensure that sufficient time is available with the Assessing Officer to frame the assessment after carrying out proper scrutiny. The requirement and the timeframe f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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