Gujarat High Court
Hemjay Construction Co. Pvt. Ltd Throu ... vs Income Tax Officer, Ward -2(2) on 13 December, 2018
Author: Harsha Devani
Bench: Harsha Devani, A. P. Thaker
C/SCA/19392/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19392 of 2018
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HEMJAY CONSTRUCTION CO. PVT. LTD THROU DEENABEN
YOGESHBHAI SHAH
Versus
INCOME TAX OFFICER, WARD -2(2)
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Appearance:
MR DARSHAN B GANDHI(9771) for the PETITIONER(s) No. 1
MR SP MAJMUDAR(3456) for the PETITIONER(s) No. 1
for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE DR.JUSTICE A. P. THAKER
Date : 13/12/2018
ORAL ORDER
(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)
1. Mr. Darshan Gandhi, learned advocate for the petitioner invited the attention of the court to the reasons recorded for reopening the assessment, to submit that the Assessing Officer seeks to reopen the assessment on the ground that the information received from the DDIT (Inv), Jamnagar reveals that the petitioner has taken unsecured loan aggregating to Rs.2,28,00,000/- during the year under consideration from five shell companies, details whereof are set out in the reasons. It was submitted that according to the Assessing Officer, during the investigation it was found that the said companies have no credentials to carry out transactions of huge amounts as per their income profile and, therefore, the Assessing Officer seeks to reopen the assessment on the ground that the above income has escaped assessment. The attention of the court Page 1 of 3 C/SCA/19392/2018 ORDER was further invited to the notice dated 16.9.2013 issued by the Assessing Officer during the course of scrutiny proceedings, to point out that the Assessing officer had called for complete details of new unsecured loans/deposits taken and accounts squared up, in response to which, the petitioner had furnished all details with regard to the loan taken from the five companies referred to in the reasons recorded. It was pointed out that confirmations from the said companies were furnished during the course of scrutiny proceedings together with the copies of their bank statements. It was submitted that the Assessing Officer after being satisfied with regard to the creditworthiness and genuineness of the said parties has not made any addition. It was pointed out that subsequent to the assessment order being passed, the Assessing Officer had also received confirmations from each of the said companies, copies whereof are annexed at Annexure-J to the petition. It was submitted that every transaction referred to in the reasons recorded has been gone into at the time of scrutiny assessment and hence, it is clear that the Assessing Officer now seeks to reopen the assessment on a mere change of opinion. It was submitted that, therefore, the assumption of jurisdiction on the part of the Assessing Officer under section 147 of the Income Tax Act, 1961 is invalid.
2. It was further submitted that the impugned notice is dated 29.3.2018 whereby the Assessing Officer seeks to reopen the assessment for assessment year 2011-12, which is clearly beyond a period of four years from the end of the relevant assessment year, and hence, the first proviso to section 147 of the Act would be attracted. It was submitted that all the material necessary for assessment had been duly Page 2 of 3 C/SCA/19392/2018 ORDER produced before the Assessing Officer during the course of scrutiny assessment, and hence, there is no failure on the part of the petitioner to disclose fully and truly all material facts necessary for assessment and, therefore also, the reopening of assessment is bad in law.
3. Having regard to the submissions advanced by the learned advocate for the petitioner, Issue Notice returnable on 5th February, 2019. By way of ad-interim relief, the respondent is permitted to proceed further pursuant to the impugned notice; 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) Z.G. SHAIKH Page 3 of 3