9911796707
TMI Blog2021 (7) TMI 958X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner filed his Return of Income for the Assessment Years 2015-16 and 2016-17. The Return of Income was processed under Section 143 (1) of the Act and a final order of assessment was passed. Surprisingly, the petitioner received a notice dated 15.03.2019, issued under Section 148 of the Act, for reopening of the assessment for the Assessment Years 2015-16 and 2016-17 respectively, on the ground that income chargeable to tax has escaped assessment within the meaning of Section 147 of the Act. The petitioner submitted his reply to the notices, confirming the filed Return of Income. The petitioner requested for reasons for reopening of assessment. The reasons were furnished to the petitioner by respondent in proceeding dated 10.06.2019. On receipt of the reasons, the petitioner filed his objections in detail on 12.06.2019 and the said objections were not considered and rejected in the impugned proceedings dated 07.11.2019. Thus, the petitioner is constrained to file these Writ Petitions. 2.The learned counsel appearing for the petitioner, even at his opening arguments, contended that it is suffice if the matter is remanded back by setting aside the order disposing of the object ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detailed objections with reference to the statement of the said Ms.Subhadra G., Manager (Operations), Apollo Hospital. 4.Secondly, the learned counsel for the petitioner relied on the order passed by the Commissioner of Income Tax (Appeals), in the case of Dr.Pichai Suryanarayan. It is contended that the case of said Dr.Pichai Suryanarayan is also similar, wherein the Commissioner of Income Tax (Appeals) allowed the appeal filed by the assessee, with an observation that the Assessing Officer has not applied her mind independently on the facts and circumstances of the case and without forming legitimate reasons to believe, which is the pre-requisite for issue of notice under Section 148 of the Act and has only relied on the statement of Ms.Subhadra G., Manager (Operations), Apollo Hospital, to reopen all the impugned assessments by issue of impugned notices under Section 148 for all three Assessment Years. The learned counsel for the writ petitioner further relied on the findings made in the order passed by the Commissioner, Income Tax (Appeals) and contended that he may be given an opportunity to submit objections in detail with reference to the statement of Ms.Subhadra G., Manage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ital, the learned Senior Standing Counsel solicited the attention of this Court with reference to the show cause notice which was relied upon by the petitioner, wherein admittedly, the statement of Ms.Subhadra G., Manager (Operations), Apollo Hospital, recorded on 05th January, 2016 (copy enclosed) has been stated. If at all the copy was not enclosed along with the show cause notice dated 28.11.2018, any prudent assessee would immediately respond to the show cause notice by stating that they have not received the copy of the statement, as stated in the show cause notice. On receipt of the show cause notice, the assessee, through their Chartered Accountants, sent a letter to the Assessing Officer on 1st December, 2018. Interestingly, in the said letter, the petitioner has not made any such complaint or request to furnish the copy of statement of said Ms.Subhadra G., Manager (Operations), Apollo Hospital, which was not enclosed in the show cause notice dated 28.11.2018. However, subsequently, the petitioner made a request on 06th December, 2018, through his Chartered Accountants. It is not in dispute that after disposing of the objection, the copy of the said statement was furnished ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e A.Y.2015-16, though the total number of patients consulted by the assessee doctor during the financial year under consideration was 3799 (New patient 1888 no., follow-up patient 1515 No.MHC 341 No. and Credit patients 55 No.), total income from consultation fee from consultation in Apollo Hospitals, was arrived at, after excluding the consultation fee relating to 341 no. of the Master Health Check patient and 55 no. of credit patients viz., patients who are not liable to pay consultation fees. The above action of the Assessing Officer shows the rationale of the proceedings initiated u/s.147. Hence, assessee's objection to this effect is baseless." Assessment Year 2016-17: "8.The assessee objected that merely relying on hospital records which indicate number of patients 'who visited' is incorrect. The Assessing officer has not arrived at the income escaping assessment relating to the A.Y.2016-17, merely based on the number of patients mentioned against the Col. 'who visited', in the Apollo Hospital records. It is clearly deliberated in the para.6, supra as well as in the reasons for reopening, that as to how the number of patients from whom consultation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r which reopening of proceedings shall be under taken by the competent authority. 16.On initiation of reopening proceedings, notice is to be issued, where income has escaped assessment under Section 148 of the Act. Section 149 contemplates time limit for notice. Time limit for completion of assessment, re-assessment and re-computation are also contemplated under Section 153 of the Act. Section 151 of the Act stipulates sanction for issue of notice. Thus, various procedures are contemplated and mere initiation is one aspect of the matter and the assessment/re-assessment is to be made by the Assessing Officer, is the further proceedings to be followed. 17.The Writ Petitions are filed questioning the initiation of proceedings under Section 147/148 of the Act, for reopening of assessment. Undoubtedly, the assessee must be provided with an opportunity to defend his case, in accordance with law, and at the first stage, on issuance of notice, the procedures to be followed are settled by the judgment of the Hon'ble Supreme Court of India in the case of GKN Drive shafts India Ltd., Vs. ITO (cited supra). However, in the present case, the petitioner states that the copy of the statemen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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