TaxTMI 
TaxTMI 
TaxTMI 
2016 (9) TMI 1614
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....79,95,798/- paid to the Surat Municipal Corporation and the same was made during the work in progress. Subsequently, it appears on the record that, on 18.10.2007 the respondent-authority namely, the Assistant Commissioner of Income Tax, Range-2, Surat, addressed a letter to the petitioner for seeking clarification of two circumstances, one is with respect to details called for regarding impact fee whether paid to the assessee to the Surat Municipal Corporation, and second, with respect to an amount of Rs. 79,95,798/- as a balcony premium. The petitioner under a communication dated 25.10.2007 has specifically pointed out above aspects and supplied the information which has been sought for, and it is only after elaborate consideration of the relevant materials pertains to the issue, it appears that the assessment order has already been passed on 31.12.2007. From the record, it appears that though this clarification and explanation were given and the particulars were supplied in the original assessment order dated 31.12.2007, the amount in question namely Rs. 79,95,798/- is neither disallowed nor added back but was forming part of the record of the assessment proceedings. It appears t....
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....by way of filing present petition. 3. Learned advocate Mr. Shah on behalf of the petitioner has contended that the issue with respect to the balcony coverage charges popularly known as balcony premium has gone into in the regular assessment proceedings, and after that the assessment order has been passed and, therefore, if the impugned action is allowed to operate, the same would be based on the change of opinion. The learned advocate Mr. Shah has drawn attention of this Court to various documents attached to the petition and contended that extensively this issue has been gone into. Learned advocate Mr. Shah has pointed out that in a communication dated 25.7.2007 the petitioner has pointed out specifically in item No. 4 that the assessee has already paid balcony premium to the extent of Rs. 79,95,738/- to Surat Municipal Corporation, and the receipt of the same is also given by the Surat Municipal Corporation. It was also pointed out while referring to the account of M/s. Shanti Enterprise for Assessment Year 2004-2005, that this figure of balcony premium is already reflected. It was also pointed out that, on 18.10.2007, during the process of assessment, the petitioner was directe....
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....to the extent of Rs. 79.95 lakhs (rounded off). The material on record indicates that the said issue during the process of assessment had been gone into. The learned counsel has referred to a communication dated 25.7.2007 in which the query was put up came to be answered and it has been stated by the assessee that the said amount has been paid to the Surat Municipal Corporation and the copy of acknowledgment of the said balcony premium is also attached to the communication dated 25.7.2007. It is further emerging from the record that the account with respect to M/s. Shanti Enterprise i.e. assessee has also indicated in it the very amount of balcony premium fee which is evident from page 15 of the compilation of the petition. Even the said figure is also reflected from the other relevant documents. The notice which has been issued on 18.10.2007 calling upon the petitioner to furnish in writing the information, in clauses 9 and 11 reads as under: "9. You have also not submitted any details regarding impact fees given to SMC, hence the same may be submitted. 11. It is found from the record that you have paid an amount of Rs. 79,95,798 to SMC as a balcony premium. It is not understo....
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....all material facts. In fact, when the issue has been thoroughly gone through during the process of assessment simply because the Assessing Officer has not assigned any reasons would not amount that no opinion is formulated. Reference may be made to a decision in the case of Gujarat Power Corporation Ltd. v. Assistant Commissioner of Income-Tax reported in [2013] 350 ITR 266 (Guj) which covers the issue on hand, relevant portion thereof reads as under. "41. The powers under section 147 of the Act are special powers and peculiar in nature where a quasi-judicial order previously passed after full hearing and which has otherwise become final is subject to reopening on certain grounds. Ordinarily, a judicial or quasi-judicial order is subject to appeal, revision or even review if statute so permits but not liable to be re-opened by the same authority. Such powers are vested by the Legislature presumably in view of the highly complex nature of assessment proceedings involving large number of assessees concerning multiple questions of claims, deductions and exemptions, which assessments have to be completed in a time frame. To protect the interest of the revenue, therefore, such special....
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....ims so made and accepted by him, it would even otherwise cast an unreasonable expectation which within the short frame of time available under law would be too much to expect him to carry. Irrespective of this, in a given case, if the Assessing Officer on his own for reasons best known to him, chooses not to assign reasons for not rejecting the claim of an assessee after thorough scrutiny, it can hardly be stated by the revenue that the Assessing Officer cannot be seen to have formed any opinion on such a claim. Such a contention, in our opinion, would be devoid of merits. If a claim made by the assessee in the return is not rejected, it stands allowed. If such a claim is scrutinized by the Assessing Officer during assessment, it means he was convinced about the validity of the claim. His formation of opinion is thus complete. Merely because he chooses not to assign his reasons in the assessment order would not alter this position. It may be a non-reasoned order but not of acceptance of a claim without formation of opinion. Any other view would give arbitrary powers to the Assessing Officer. 43. We are, therefore, of the opinion that in a situation where the Assessing Officer dur....
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....s already been gone into. There appears to be no tangible material distinct from what was made a part of the assessment proceedings and, therefore, reopening of the assessment is not permissible. The proposition of law is aptly clear, as stated above and, therefore, in our opinion, permitting the authority to reopen the assessment would not be valid. We cannot shut our eyes over the aforesaid circumstance simply because it is within the period of four years and having regard to the decisions of Apex Court which propounded that the Courts would be failing to perform their duty, if reliefs were refused without adequate reasons, we see that the action on the part of the respondent authority is impermissible in view of aforesaid set of circumstance. The observations made by the Apex Court in case of Calcutta Discount Co. Ltd. v. ITO reported in [41 ITR 191 at page 195 head-note (v) are worth to be reproduced hereafter: "That though the writ of prohibition or certiorari would not issue against an executive authority, the High Courts had power to issue in a fit case an order prohibiting an executive authority from acting without jurisdiction. Where such action of an executive authority....