Gujarat High Court
Bharatkumar Nihalchand Shah vs The Assistant Commissioner Of Tax ... on 26 November, 2018
Author: Harsha Devani
Bench: Harsha Devani, A. P. Thaker
C/SCA/17709/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17709 of 2018
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BHARATKUMAR NIHALCHAND SHAH
Versus
THE ASSISTANT COMMISSIONER OF TAX CIRCLE 1(2)
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Appearance:
MR B S SOPARKAR(6851) for the APPELLANT
for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE DR.JUSTICE A. P. THAKER
Date : 26/11/2018
ORAL ORDER
(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)
1. Mr. B. S. Soparkar, learned advocate for the petitioner has invited the attention of the court to the reasons recorded for reopening the assessment, to point out that the heading thereof indicates that the assessment of assessment year 2011-12 is sought to be reopened under section 147 of the Income Tax Act, 1961, whereas in paragraph 3 of the reasons recorded, the Assessing Officer has referred to the transaction made during the previous year relevant to assessment year 2010-11. It was further pointed out that while in the opening part of the reasons recorded, the Assessing Officer records that the assessee had filed return of income, in paragraphs 5 and 6 he has recorded that he has reason to believe that the income has escaped assessment within the meaning of clause (a) to the Explanation-2 to section 147 of the Page 1 of 3 Downloaded on : Sat Mar 20 04:01:22 IST 2021 C/SCA/17709/2018 ORDER Income Tax Act. It was submitted that clause (a) to the Explanation-2 to section 147 of the Act would be applicable when no return of income has been filed by the assessee and therefore, it is evident that the assessment is sought to be reopened without proper application of mind on part of the Assessing Officer.
2. It was also pointed out that the reasons have been recorded on 29.03.2018, which is the date reflected in the reasons furnished to the petitioner, whereas in the form for recording reasons for initiating the proceedings under section 148 of the Act for obtaining approval of the Additional Commissioner/Commissioner of Income Tax, the same shows the date 28.03.2018 which is prior to the date of recording of reasons. It was submitted that though the petitioner assessee had raised objections against reopening of assessment, the same are sought to be brushed aside in the order rejecting the objections on the ground that the discrepancies are in the nature of human error while typing and a mistake. It was submitted that in paragraph 3.14 of the order rejecting the objections, the Assessing Officer has recorded that the mistake has happened in mostly all the cases reopened during the year because the cases were reopened on information based and also of non-filers. It is, therefore, evident that the Assessing Officer has mechanically recorded the reasons without properly appreciating the facts of the case.
3. The attention of the court was invited to the objections raised by the petitioner against the reopening of the Page 2 of 3 Downloaded on : Sat Mar 20 04:01:22 IST 2021 C/SCA/17709/2018 ORDER assessment to point out that even on merits, the reopening of assessment is not justified.
4. Having regard to the submissions advanced by the learned counsel for the petitioner, Issue Notice returnable on 24th December, 2018. By way of ad-interim relief, the respondent is permitted to proceed further with the assessment; he, however, shall not pass the final order without the permission of this court. Direct Service is permitted.
(HARSHA DEVANI, J) (A. P. THAKER, J) B.U. PARMAR Page 3 of 3 Downloaded on : Sat Mar 20 04:01:22 IST 2021