TMI Blog2021 (12) TMI 772X X X X Extracts X X X X X X X X Extracts X X X X ..... er cannot adopt the route of re-opening and issue notice under Section 148. - Decided in favour of assessee. - WRIT PETITION NO.2663 OF 2007 - - - Dated:- 16-12-2021 - K. R. SHRIRAM AND AMIT B. BORKAR, JJ. Mr. P. J. Pardiwalla, Senior Advocate a/w. Mr. Atul K. Jasani for the Petitioner. Mr. Sham V. Walve for the Respondent/Revenue. P. C. : On 23/1/2008 Rule was issued and interim relief in terms of prayer clause (b) was granted. 2. The same has been in force since then. 3. Petitioner aggrieved by notice dated 20/3/2007 issued under Section 148 of the Income Tax Act, 1961 (said Act) for Assessment Year 2002-2003 approached this Court praying for a Writ of Certiorari to quash the said notice dated 20/3/2007 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment order, Petitioner had filed an appeal before the Commissioner of Income Tax (Appeals) (CIT(A)). Before the CIT(A) the applicability of the provisions of Section 14A of the said Act which is also the subject matter of the reasons for reopening came up for consideration. CIT (A) after hearing and considering the submissions of Petitioner directed disallowance of ₹ 1,82,207/- under Section 14A of the said Act. Paragraph No.10 and 10.1 of the order of CIT (A) reads as under: 10. During the course of appeal hearing the appellant was required to explain why some notional expenditure for earning tax free dividend should not be disallowed in view of the provision of Section 14A of the said Act. It was submitted that the company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not have been issued. 9. Mr. Walve of course strongly supported the action of the Assessing Officer. 10. After hearing Shri Pardiwalla and Shri Walve and having considered pleadings before us, in our view the impugned notice under Section 148 of the said Act has to be set aside. We have arrived at this conclusion because Third proviso to section 147 of the said Act (as it was then in force) reads as under: Provided also that the Assessing Officer may assess or reassess such income, other than the income involving matters which are the subject matters of any appeal, reference or revision, which is chargeable to tax and has escaped assessment. 11. Therefore when the appeal had been preferred by Petitioner before the ITAT, an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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