TMI Blog2019 (2) TMI 1089X X X X Extracts X X X X X X X X Extracts X X X X ..... within a period of five years as provided under the provisions for re-assessment. There is no reason to so keep in abeyance the demand raised or direct rectification of the assessments carried out on the said ground raised. The accounts of the assessee which were confirmed at the AGM's earlier constituted; when recast can only have implications to the share-holders. The assessment made under the Act of 1976 is only on the receipts of the Hotel which would not at all be altered and the same is based on the books of account as maintained by the Hotel and verified by the Assessing Officer. There can be no alteration of the receipts at this stage when the last of the assessment years we are concerned with is about 14 years prior. Appeal is partly allowed setting aside the re-assessment made for the year 2000-01 but upholding the re-assessment for the other years. - W. A No. 2061 of 2012 And 28 of 2013 - - - Dated:- 29-1-2019 - MR K. VINOD CHANDRAN AND MR ASHOK MENON, JJ. For The Appellant : ADV. SRI. K. N. RADHAKRISHNAN(THIRUVALLA) For The Respondent : ADV. SRI. K. N. RADHAKRISHNAN(THIRUVALLA) JUDGMENT Vinod Chandran, J The challenge in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e entire turnover and there was no reason for a reassessment. The Assessing Officer while issuing notice for assessment had proposed to include both the charges, ie, those charges levied on the residents and the outsiders. However, accepting the objections raised by the assessee on that count, the Assessing Officer while completing assessment, consciously decided to exclude the portion with relation to the charges levied on those persons who were not residing in the hotel. There could be no re-assessment carried out since the assessee was not at default and the Assessing Officer had taken a conscious decision to exclude a particular component; which removes it from the ambit of re-assessment for reason of the same being only now brought to tax, for reason of a mere change of opinion. Further, the learned Senior Counsel would also refer to the proceedings which had taken place, altering the management of the hotel and the decision of the National Company Law Tribunal (for brevity the NCLT), Chennai which set aside the accounts commencing from the year 2002-03 onwards for reason of the AGM's convened for approving the accounts for the consecutive years having been illegally conve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deliberation on the issue. Here the Assessing Officer while completing the assessment had specifically excluded certain portion of turnover of certain facilities offered in the Hotel, which comes within the ambit of luxury as defined under the Act. When it is sought to be included in a reassessment proceedings definitely it cannot be a mere rectification and it involves a deliberation on a consideration of the objections and adjudication of the issue. We hence reject the contention of the State. We hold that there can be no rectification carried out in the year 2000-01, bringing to tax, the charges levied on services, specifically excluded in an assessment under the Act. We also hold that the assessment completed for the year 2000-01, cannot be subjected to re-assessment under Section 6(5) of the Act for reason of the limitation having set in. The re-assessment carried out for that year stands set aside. 9. The next contention is with respect to the change of opinion, insofar as the Assessing Officer, on completion of assessment having clearly taken a conscious decision to exclude the charges levied on persons who were not residing in the hotel. We notice the Full Bench decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Officer at the time of the original assessment to enable a re-assessment. 11. Under the Income Tax Act on the facts of the present case, the re-assessment would not be possible since the Assessing Officer had looked at the total turnover in the Ayurvedic Centre and Boat Hiring centre etc.,and had consciously excluded a portion of the same as being not covered under the Act. However, we find that the provision under Section 6(5) is in pari materia with the Agricultural Income Tax Act which we extract herein: Section 6(5): Where for any reason, the whole or any part of the business of a hotel/house boat has escaped assessment to tax in any year or has been under assessed at a lower rate than the rate at which it is assessable or any deduction has been wrongly made there from, the assessing authority may at any time within a period of five years from the expiry of the year to which the tax relaters, proceed to determine to the best of its judgment, the turnover which has escaped assessment to tax or has been under-assessed or has been assessed at a lower rate than the rate at which it is assessable and assess the tax payable on such turnover, after issuing a notice to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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