2010 (3) TMI 316 - HC - Income Tax

Reassessment- The petitioner who is a solicitor and advocate was a partner of Little and Company. A notice was served on the assessee for re open the case u/s 147 and 148 on the ground under clause 35 of the deed of partnership a partner who had retired voluntarily would not as long as continuing or surviving partners would carry on the business solicit the clients of the firm for a period of three years from the date of his retirement. The Assessing Officer held that the amount was consequently liable to capital gain tax u/s 28(va). Held that- the jurisdiction to reopen the assessment was not validly exercised since the condition president laid down by the statute for reopening of an assessment beyond a period of 4 years of the expiry of the relevant assessment year had not been fulfilled. Allow the appeal.

Summary

Issues:
Challenge to reopening of assessment for the assessment year 2003-04 under article 226 of the Constitution.

Analysis:
1. The petitioner challenged the reopening of assessment for the assessment year 2003-04, which was beyond four years from the end of the relevant assessment year. The petitioner, a solicitor and advocate, retired from a partnership and continued practice with a new firm. The Assessing Officer sought to reopen the assessment based on the amount received on retirement, claiming it was liable to capital gains tax under section 28(va).

2. Two main submissions were made by the petitioner. Firstly, it was argued that all material facts were fully disclosed during the original assessment, including the amount received and receivable on retirement. Secondly, it was contended that the inference drawn by the Assessing Officer regarding the payment on retirement was incorrect, as there was no covenant for renouncing the right to practice law in the partnership deed.

3. The Assessing Officer filed an affidavit stating that the amount received on retirement was not offered for taxation in the original return. The assessment was reopened beyond four years, leading to a reassessment. The court clarified that completing reassessment does not prevent seeking relief under article 226 if the statutory requirements for reopening were not met.

4. The court analyzed the provisions of section 147 and section 149(1)(b) of the Income-tax Act, focusing on the requirement to disclose all material facts for assessment. The petitioner had disclosed all relevant details in the return of income and during assessment proceedings, including explanations regarding the retirement and amounts received.

5. It was concluded that the petitioner had fully disclosed all necessary material facts for the assessment year 2003-04. As a result, the jurisdiction to reopen the assessment was not validly exercised, as the statutory condition precedent for reopening beyond four years was not fulfilled. The court allowed the petition, setting aside the notice and order of assessment, with no costs imposed.