Gujarat High Court
Deloitte Haskins And Sells vs Assistant Commissioner Of Income Tax ... on 4 December, 2018
Author: Harsha Devani
Bench: Harsha Devani, A. P. Thaker
C/SCA/18637/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18637 of 2018
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DELOITTE HASKINS AND SELLS
Versus
ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE - 1(2)(1)
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Appearance:
MR JP SHAH, SR. ADVOCATE with MR MANISH J SHAH(1320) for the
PETITIONER
for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE DR.JUSTICE A. P. THAKER
Date : 04/12/2018
ORAL ORDER
(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)
1. Mr. J. P. Shah, Senior Advocate, learned counsel with Mr. Manish Shah, learned advocate for the petitioner invited the attention of the court to the reasons recorded, to submit that the assessment is sought to be reopened on the ground that the assessee has not disallowed and added to the total income a sum of Rs.18,60,886/- according to section 2(24) read with section 36(1)(va) of the Income Tax Act, 1961. It was pointed out that in this case, the assessment for assessment year 2011-12 is sought to be reopened by the impugned notice dated 28.03.2018, which is clearly beyond a period of four years from the end of the relevant assessment year and hence, in the absence of any failure on the part of the petitioner to disclose fully and truly all material facts, the assumption of jurisdiction on the part of the Assessing Officer Page 1 of 3 C/SCA/18637/2018 ORDER is invalid. The attention of the court was invited to the reasons recorded, to point out that in the note for computation of income, the assessee has mentioned that since the payment of employees' provident fund was before the due date for filing the return of income, it was considered as allowable while computing the total income. It was further pointed out that the assessee has clearly mentioned the said fact in the Annexures to the tax audit report and the note for computation of income.
2. Reference was made to the tax audit report (Annexure "B" to the petition) and more particularly Annexure-VII thereof, to point out that the details regarding employees' provident fund contribution have been specifically provided along therewith. It was submitted that therefore, there is no failure on the part of the petitioner to disclose fully and truly all material facts and that at the relevant time when the assessment came to be framed, the position of law was that if the employees' provident fund contribution is made before the due date of filing of the return of income, no disallowance under section 36(1)(va) of the Income Tax Act, 1961 could be made.
3. Referring to the order disposing of the objections, it was pointed out that the Assessing Officer seeks to rely upon a decision of this court in Commissioner of Income Tax-II v. Gujarat State Road Transport Corporation, (2014) 366 ITR 170 (Guj.), wherein it has been held that delayed payments under the head employees provident fund is not allowable under the Act. Reference was made to the decision of this High Court in Austin Engineering Co. Ltd. v. Joint Commissioner of Income Tax, (2009) 312 ITR 70 (Guj.), for Page 2 of 3 C/SCA/18637/2018 ORDER the proposition that change of opinion of the Assessing Officer on the basis of subsequent decision rendered by the Supreme Court can be said to be a case of change of opinion and not a case of failure on the part of the assessee.
4. Having regard to the submissions advanced by the learned counsel for the petitioner, Issue Notice returnable on 22nd January, 2019. 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