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2018 (9) TMI 1871

..... ioned that there was failure on the part of the assessee to disclose fully and truly all material facts necessary for the assessment. Even the assessment order also makes no mention of such failure on the part of the assessment. It is also noticed that assessee has filed objection vide letter dated 21.01.2013, but these objection has not been disposed by AO at all except making mention thereon in the assessment order. The 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 assessment .....

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..... reopening of the assessment was time barred. (2) The appellant further submits that the reopening is also bad in law as the necessary conditions for reopening were not satisfied. (II) Disallowance of ₹ 6,63,371: On the facts and circumstances of the case and 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 mater .....

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..... from the end of relevant assessment year is bad and cannot be sustained. The ld.Counsel further submitted that there was no new information came in the position of the AO as it is mentioned in para 2 of 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 .....

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..... o dispose off objection filed by the assessee. We further find that the AO has not alleged that there was a failure on the part of assessee when the information was already 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 .....

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