TMI Blog2021 (10) TMI 1143X X X X Extracts X X X X X X X X Extracts X X X X ..... 148 of the Act on or before 31-03-2013 whereas the notice issued was on 23-04-2014. Further, we also discussed that all the relevant details regarding the admission of new partners and also retiring partners were fully disclosed in the audit report in Form No. 3CD, and payment of goodwill thereon Thereby, we find no infirmity in the order of CIT(A) and it is justified - Decided against revenue. - ITA No. 201/PUN/2017 - - - Dated:- 20-10-2021 - R. S. Syal , Vice President And S. S. Viswanethra Ravi , Member ( J ) For the Appellant : Deepak Garg For the Respondents : Nikhil Pathak ORDER Per S. S. Viswanethra Ravi, JM This appeal by the Revenue is against the order dated 09.11.2016 passed by the Commissioner of Income-tax (Appeals)-2, Nashik for assessment year 2008-09. 2. The appellant-Revenue raised two effective grounds, amongst which, ground No. 1 is legal ground wherein the appellant-Revenue challenged the action of CIT(A) in declaring the reopening of assessment as bad under law in the facts and circumstances of the case. Upon hearing both the parties, we proceed to hear ground No. 1. 3. Brief facts relating to the issue concerning the assessee ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed in response to the notice u/s. 148 of the Act about the introduction or credit of goodwill to the retiring three persons. The CIT(A) without considering these facts held the reassessment as bad in law arbitrarily. Further, he submits while referring to page No. 39 of paper book that no new partnership deeds were filed even in the re-assessment proceedings showing the admission of new partners and prayed to allow ground No. 1. The ld. DR referred to a decision of Hon'ble Supreme Court in the case of ITO Vs. TechSpan India (P.) Ltd. reported in (2018) 92 taxmann.com 361 (SC), submits that in the present case no opinion whatsoever rendered by the AO formed during the course of original assessment regarding the taxability of goodwill as credited to the accounts of retiring partners. He referred to para Nos. 10 and 12 of the said decision and argued that the Court is ought to verify whether the assessment earlier made as either expressly or by necessary implication expressed an opinion on a matter which is the basis of alleged escapement of income that was taxable. He argued that during the course of original assessment proceedings there was no opinion formed by the AO regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The said Annexure-1 is placed at Page Nos. 38 and 39 of the paper book, wherein we find the details of partners capital account showing Sanghavi Foods Pvt. Ltd. Shri S. Jhawar and Shri P. Jhawar closing balance at ₹ 54,63,06,295/-, ₹ 15,315/- and ₹ 15,315/-, respectively whereas the closing balance of the retiring members i.e. Shri S.C. Jain, Smt. V.P. Sanghavi and Smt. S.S. Sanghavi were shown at Nil. Therefore, we find the arguments of ld. DR are incorrect to the extent that the assessee did not fully disclose about the retirement of Shri S.C. Jain, Smt. V.P. Sanghavi and Smt. S.S. Sanghavi in the return of income. It is needless to say that the statements under Form No. 3CD, balance sheet and profit and loss account are part of return of income. 7. Coming to the other aspect that the AO had no occasion to consider the retirement of the said three persons and the payment of goodwill thereon. We note that we already held the relevant details of members of retirement and payment of goodwill is already there on record vide Form No. 3CD along with the return of income. Further, we note that the balance sheet as on 31-03-2008 is placed at Page No. 49 of the paper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure to make a return under section 139 of the Act or in response to a notice issued under sub-section (1) of section 142 or section148or to disclose fully and truly all material facts for that assessment year. In the present case, the end of assessment year for A.Y. 2008-09 is 31-03-2009, the AO should have issued notice u/s. 148 of the Act before 31-03-2013, whereas, the notice u/s. 148 of the Act was issued on 23-04-2014 which clearly shows the notice u/s. 148 of the Act for reopening of original assessment was issued beyond four years from the end of assessment year i.e. 31-03-2009. Further, there was no income chargeable to tax has escaped by reason of failure by the assessee, as discussed above, the assessee furnished all the details relating to admission of new partners, retirement of old partners and payment of goodwill thereon. Therefore, the assessee disclosed all relevant details fully and truly all material facts and were available on record before the AO in the original assessment proceedings. 10. Coming to the decision of Hon'ble Supreme Court in the case of Income Tax Officer Vs. TechSpan India (P.) Ltd. (supra) as relied by the ld. DR, wherein the Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X
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