TMI Blog2018 (9) TMI 1871X X X X Extracts X X X X X X X X Extracts X X X X ..... AO was required to dispose off objection, laid down by Hon'ble Supreme Court in the case of G.K.N.Drive Shafts Ltd. [ 2002 (11) TMI 7 - SUPREME COURT] and Garden Finance Ltd. [ 2003 (10) TMI 17 - GUJARAT HIGH COURT] AO is bound to dispose off objection filed by the assessee. In absence of any averment that the assessments are sought to be re-opened by reason of failure on the part of assessee to disclose fully and truly all material facts necessary for assessment for the relevant assessment year, the very initiation of proceedings u/s.147 by issuance of notice u/s.148 after expiry of four years from the end of relevant assessment year is bad and cannot be sustained. We are of the considered opinion that the re-opening amounts t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as per law, the learned Commissioner of Income-tax (Appeals) erred in confirming disallowance of ₹ 6,63,371 of partners remuneration (III) Miscellaneous: (1) The learned Commissioner of Income-tax(Appeals) ought to have deleted interest u/s.234A, 234B and 234C. (2) The appellant craves leave to add, alter or vary any of the grounds of appeal. 3. Ground No.1 relates to reopening of assessment which was time barred. 4. We have heard the rival submissions and perused the material on record. The ld.Counsel for the assessee submitted that the assessment for A.Y. 2006-07 was completed u/s.143(3) on 28.11.2008. The notice u/s.148 was issued on 04.12.2012 which is beyond four years from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment order that on verification of the case records, it is revealed that the assessee had paid remuneration of ₹ 7,13,371/-. From the reading of this observation of the AO it is clear that no new information was received for re-opening proceedings have been initiated on the basis of mere change of opinion which is not allowed. It was further submitted that the appeal was filed against the above order and in the appellate order (PB 36 to 40), the CIT(A) directed the AO to re-calculate the remuneration payable to partners as per the provisions of section 40(b)(v) of the Act. Thus, assessment order had merged in the order of CIT(A) on the issue on which the assessment was re-opened. 5. Per contra, the ld.DR sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y available on record. Therefore, by applying ratio laid down by Hon'ble Gujarat High Court in the case of Sadbhav Engineering Ltd. vs. DCIT (2011) 33 ITR 483 in which it was laid down that in absence of any averment that the assessments are sought to be re-opened by reason of failure on the part of assessee to disclose fully and truly all material facts necessary for assessment for the relevant assessment year, the very initiation of proceedings u/s.147 by issuance of notice u/s.148 after expiry of four years from the end of relevant assessment year is bad and cannot be sustained. 7. In the light of above facts, we are of the considered opinion that the re-opening amounts to change of opinion and there was no failure on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
