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Gujarat High Court

Devenbhai Mafatlal Patel vs The Assistant Commissioner Of Income ... on 26 December, 2018

Author: Harsha Devani

Bench: Harsha Devani, A. P. Thaker

        C/SCA/20607/2018                                             ORDER




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CIVIL APPLICATION NO. 20607 of 2018

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                  DEVENBHAI MAFATLAL PATEL
                            Versus
     THE ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE 1(3)
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Appearance:
MS VAIBHAVI K PARIKH(3238) 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 : 26/12/2018

                                   ORAL ORDER

(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)

1. Mr.Tushar Hemani, learned advocate for the petitioner has invited the attention of the Court to the order dated 20.12.2018 passed by this Court in the case of Vijya Laxmi Exports in Special Civil Application No.20132 of 2018 to submit that in the case of the partnership firm also, the Assessing Officer sought to reopen the assessment on the ground that the firm had claimed excess deduction of Rs.57,71,499/- under Section 10AA of the Income Tax Act, 1961 which was liable to be taxed in the hands of the partners. It was pointed out that in that case the court has issued notice and has restrained the respondents from passing the final order.

2. Referring to the reasons recorded, it was submitted that in the case of the partners, the Assessing Officer seeks to reopen the assessment on the ground that M/s.Vijya Laxmi Exports has paid Rs.12,74,351/- as interest on partners capital and Rs.44,97,148/- as remuneration to its partners but has claimed excess deduction of Rs.57,71,499/- under section 10AA of the Act. Reference was made to the computation of total income of Vijya Laxmi Exports to point out that interest and remuneration therein is shown as nil, which is also reflected in clause (g) in column No.17 in the statement of particular required to be furnished under Section 44AB of the Act. It was submitted that therefore, the Assessing Officer seeks to reopen the assessment on the basis of conjectures and surmises and that on the reasons recorded, the Assesing Officer could not have formed the belief that income chargeable to tax has escaped assessment. It was further pointed out that in this case the impugned notice has been issued on 31st March, 2018 in relation to Assessment Year 2011-12 which is clearly beyond a period of four years from the end of the relevant assessment year without there being any failure on the part of the petitioner to disclose fully and truly all material facts necessary for his assessment, therefore, the assumption of jurisdiction on the part of the Assessing Officer under section 147 of the Act, is invalid.

3. Having regard to the submission advanced by the learned counsel for the petitioner, Issue Notice Page 2 of 3 Downloaded on : Mon Aug 30 23:25:36 IST 2021 C/SCA/20607/2018 ORDER 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 prior permission of this Court. Direct service is permitted today.

(HARSHA DEVANI, J) (A. P. THAKER, J) ASHISH M. GADHIYA Page 3 of 3 Downloaded on : Mon Aug 30 23:25:36 IST 2021