TaxTMI 
TaxTMI 
2026 (8) TMI 1483
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....ening of the assessment for A.Y. 2013-14. 3. As the reasons assigned in both the show-cause notices for reopening the assessment are self-same, Special Civil Application No. 18955 of 2019 is treated as the lead matter. 4. At the outset, learned Senior advocate Mr. Tushar Hemani has urged that the impugned show-cause notices and the action of reopening of the assessment are required to be quashed and set aside in view of the decision dated 09.02.2021, rendered by the Coordinate Bench of this Court in writ petitions being Special Civil Application No. 20821 of 2018 and allied matters, in the case of Myhome Developers Vs. The Assistant Commissioner of Income Tax, the present petitioner is the partner of Myhome Developers. 5. The petitioner is a partner in a partnership firm viz. "M/s. My Home Developers" (hereinafter referred to as "the partnership firm"). The partnership firm is engaged in the business of developing housing projects. The partnership firm commenced its business with effect from 15.06.2007. The petitioner, along with the other partners of the said partnership firm, executed a partnership deed on 27.06.2007, which contained a discretionary clause regarding "pay....
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....2, 2012-13 and 2013-14 were reopened by issuance of notices under Section 148 of the Act in the month of March 2018. The partnership firm challenged the reopening of the assessments for the said years by filing writ petitions being Special Civil Application No.20821 of 2018 and allied matters. By order dated 09.02.2021, the reopening of the assessments and the impugned notices were quashed and set aside. 11. Subsequently, the respondent issued the impugned notice dated 30.03.2019 under Section 148 of the Act, seeking to reopen the case of the petitioner for the year under consideration. 12. The petitioner filed his return of income for the year under consideration on 09.08.2019 in response to the notice issued under Section 148 of the Act and requested the respondent to supply a copy of the reasons recorded for reopening the assessment. 13. A copy of the reasons recorded for reopening the case of the petitioner was supplied vide letter dated 23.08.2019. 14. Learned Senior Counsel Mr. Tushar Hemani has submitted that the reopening of the assessment is required to be quashed and set aside in view of the judgment of this Court dated 09.02.2021 passed in Special Civil Appli....
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....nterest on capital, but no remuneration was payable to the partners. 21. The partnership deed was subsequently amended, and it was mutually agreed that, with effect from 01.04.2009, no interest would be payable to the partners on their capital. 22. The Coordinate Bench in the judgment dated 09.02.2021 passed in Special Civil Application No.20821 of 2018 and allied matters, in the case of the partnership firm has observed thus : "12. It is settled law that, the Assessing Officer has power to reassess any income with escaped assessment for any assessment year subject to provision of the Act. However, the use of this power is conditional upon the fact that, the assessing officer has some reason to believe that, the income has escaped assessment. Where an assessment under Section 143 or 147 of the Act has been made for the relevant assessment year, no action shall be taken after expiry of 4 years 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 the notice issued under sub-section 1 of Section 142 or Section 148 or to disclose fully ....
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....accounting period." 15. Clause 6 of the amended partnership deed dated 01.04.2009 reads thus: "Clause 6-The parties here to agreed that, at present no interest shall be payable to partners of the firm on the amount standing to the credit of the capital account or current account of the partners." 16. At this stage, it is apt to refer to and rely upon the case of Alidhara TaxSpin (supra), wherein identical issue of law was decided. The two questions of law raised by the revenue and the final conclusion arrived at by this Court reads thus : "(A) Whether on the facts and circumstances of the case and in law, the Hon'ble ITAT was justified in not appreciating the fact that by not providing interest and remuneration to the partners, the firm has claimed higher profits leading to higher claim of deduction u/s 80IB of the Act and thus, devoiding the revenue from due amount of tax? (B) "Whether on the facts and circumstances of the case and in law, the Hon'ble ITAT was justified in not appreciating that the Section 80IB(10) enables AO to recompute the profit of undertaking claiming deduction u/s 80IB i.e. the partnership firm as in the present c....