2016 (12) TMI 117

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....ective parties, the present petition is taken up for final hearing today. 3. By way of this petition under Article 226 of the Constitution of India the petitioner - assessee has prayed to quash and set aside the impugned notice dated 09/03/2016 issued under Section 148 of the Income Tax Act, 1961 by which the assessment for the Asessment Year 2009-10 is sought to be reopened in exercise of powers under Section 147 of the Income Tax Act beyond the period of four years. 4. Heard Shri R.K. Patel, learned advocate appearing on behalf of the petitioner and Ms. Mauna Bhatt, learned advocate appearing on behalf of the respondent. 5. It is not in dispute that the assessment for the Assessment Year 2009-10 is sought to be reopened beyond th....

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....the remisers. However, it was noticed from the ledger account that the assessee had not complied with the provisions of Chapter XVII-B; and as against deductible Rs. 21,62,910/- under Section 194H the assessee deducted Rs. 13,38,354/- resulting in short deduction of TDS of Rs. 8,24,556/- under Section 194H on the above remission charges paid to the remisers. Hence, the proportionate amount of Rs. 80,05,400/- on which TDS was not paid was required to be disallowed under Section 40(a)(Ia). This being not done resulted in under assessment of income of Rs. 80,05,400/-. As per the percentage share of brokerage allowed under the Bye Laws 218 of ASE, the commission so paid cannot exceed 40 percent of the brokerage received by the assessee. The com....

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....respect to the percentage share of the brokerage. The assessee specifically disclosed the name of 33 remisiers on the role of the Company who were registered with Bombay Stock Exchange. 7. From the reasons recorded for reopening, it appears that according to the Assessing Officer (i) proportionate amount of Rs. 80,54,000/- on which TDS was not paid was required to be disallowed under Section 40(a)(Ia) and (ii) considering the Bye Laws 218 of Ahmedabad Stock Exchange, the commission so paid cannot exceed 40 percent of the brokerage received by the assessee, and therefore, such brokerage beyond the extended 40 percent was disallowed under the provisions of Explanation under Section 37(1) of the Act. Therefore, according to the Assessing Of....