AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2023 (1) TMI 1391
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.... and specific documents have been called for which had been responded by the petitioner on 1.9.2014 where he had also provided the details in relation to the land contributed as capital in the firm of M/s. Kamla Developers along with the articles of agreement in response to the said notice. 2.1 The scrutiny assessment was completed by finalizing the total income at Rs.11,02,380/- on 7.11.2014. 2.2 It appears that as per terms of partnership deed dated 1.8.2011 has 15% share in M/s. Kamla Developers situated 402, Apollo Arcade, Ghatlodiya, Ahmedabad as the petitioner with other five persons was holding the agricultural land bearing revenue survey No. 887/1 + 888 admeasuring 1-50-75 hector-are-sq.mtr. situated at Naroda, Ahmedabad. 2.3 It is averred that the land was purchased by the sixth co- owner for a total consideration of Rs.1,43,22,000/- and the share of the petitioner was Rs.28,64,400/-. After the land was converted into the non agricultural land by virtue of order of District Collector, Ahmedabad on 28.8.2011, the petitioner along with other five coowners bought the said N.A.land into the said partnership firm with effect from 1.9.2011 for a total consideration of Rs.1,54....
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....d notice dated 27.3.2019 issued by the respondent proposing to reopen the completed assessment of the petitioner for A.Y.2012-13 and the order of objection dated 28.8.2019 as well as the reassessment order, if any passed in consequences to the impugned notice. (b) to call for the records of the proceedings, look into them and be pleased to issue a writ of certiorari or any other appropriate writ, roder or direction quashing the impugned notice as well as the order of objection dated 28.8.2019 (Annexure B). (c) Pending the hearing and final disposal of this petition to maintain status quo in the matter and ask the respondent and its subordinates not to take any action or to do anything in furtherance and pursuance of this impugned notice. (d) To allow this petition with cost. (e) To pass any further or other orders as the Hon'ble Court may deem proper in the interest of justice and in the circumstances of the case." 5. Affidavit-in-reply is filed by I.T.O, Ward 4(2)(2), Ahmedabad denying each and every averments and further contending that the petition is filed at a pre-mature stage inasmuch as notice under section 148 read with Section 147 of the I.TAct has been issue....
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....49 and after obtaining approval of competent authority u/s. 151 of the Act where the Assessing Officer had clearly formed the reason to believe regarding the escapement of income. 8. This Court has heard Mr.S.N.,Divetia, learned advocate for the petitioner who has emphasized the failure on the part of the respondent to recognize that the first proviso to Section 147 of the I.T.Act would apply which requires that there should be failure or omission on part of the assessee to disclose fully and truly material facts or failure to furnish return of income. He has agreed not to touch the issue of Sections 50(C) and 45(3) of the I.T.Act and their applicability in the instant case to the case of assessee and to those co-partners whose matters are pending before this Court for final adjudication. He has relied upon the decision of this Court in case of Austin Engineering Co. Ltd. Vs. Joint Commissioner of Income Tax reported in (2009) 312 ITR 70 (Guj). It was the case where, the petitioner was limited company and its assessment has been completed under Section 143(3) the I.T Act allowing the deduction under Section 80HHC on export incentive benefit. Notice was issued by the Assessing Offi....
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.... his opinion only on the basis of subsequent judgment rendered by the Apex Court. Thus, this is a case of change of opinion by the Assessing Officer and not a case of any failure on the part of the assessee. 7. The two decisions of the Supreme Court on which reliance has been placed on the respondent-authority are both in context of the provisions of Section 147 (b) of the Act as it then stood before 01- 04-1989 and hence, cannot carry the case of the Revenue any further. Section 147 (b) of the Act itself stipulates that re- assessment is permissible within a period of four years on receipt of information from an external source. But the present is a case where the period of four years has already elapsed. Hence, even if one proceeds on a footing that the Apex Court judgment constitutes information yet if the period of four years has expired, unless and until the prerequisite conditions stipulated by the Proviso to Section 147 of the Act are shown to be fulfilled, no action can be initiated for re-assessment. 8. Reference to provisions of Explanation 2 of the Act also cannot assist the case of the Revenue. The language employed by the Proviso itself indicates that the legisla....
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....d which comes to his notice subsequently in the course of the proceedings under this section, or re-compute the loss or the depreciation allowance or any other allowance, as the case may be, for the assessment year concerned. (hereafter in this Section and in sections 148 to 153 referred to as the relevant assessment year) The first proviso provides that where an assessment under subsection (3) of section 143 or this section has been made for the relevant assessment year, no action shall be taken under this section after the expiry of four years from the end of the relevant assessment year, unless any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return under section 139 or in response to a notice issued under sub-section (1) of section 142 or section 148 or to disclose fully and truly all material facts necessary for his assessment, for that assessment year. Explanation 2.-For the purposes of this section, the following shall also be deemed to be cases where income chargeable to tax has escaped assessment, namely:- a) where no return of income has been furnished by the assessee altho....
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.... has reason to believe has escaped assessment. The proviso stipulates that when scrutiny assessment under Section 143(3) has already taken place, such reassessment would be barred after expiry of 4 years from the end of relevant assessment year unless the income chargeable to tax has escaped assessment on account of assessee not having disclosed fully and truly all the material facts necessary for the assessment. 11. In the instant case for A.Y.2012-13, the original assessment was finalized under Section 143(3) of the Act, after the notice under Section 142 had been issued on 7.11.2014. The impugned notice issued under Section 148 of the Act on 27.3.2019 and admittedly, it is beyond the period of 4 years from the end of A.Y.2012-13 and therefore, the requirements of the first proviso to Section 147 shall need to be necessarily satisfied for the respondent to reopen the assessment after period of 4 years from the end of the relevant assessment year. As can be noticed from the reasons recorded for reopening the assessment although the Assessing Officer has mentioned that there has been failure on the part of the petitioner to disclose the transaction fully and truly in the return of....