2016 (12) TMI 871 - HC - Income Tax

Validity of reopening of assessment - objections raised by the audit party relied upon - Held that - The assessee furnished necessary documentary evidence including books of accounts etc. and after having satisfied with respect to the accounting system of the assessee with regard to the accounting of the subsidy Additional Commissioner of Income Tax Range 4 Surat communicated to the Commissioner of Income Tax II Surat that the objections raised by the Audit Party do not survive and / or observation made by the audit party may be treated as complied with and no remedial action was called for on the merits of the case. It is required to be noted that the assessment is reopened on the very ground on which the objections raised by the audit party. Under the circumstances and more particularly the allegations that the assessment is reopened solely on the objection raised by the audit party and there is no independent formation of opinion by the Assessing Officer that the income has escaped assessment have not been denied or disputed the impugned notice under Section 148 of the Act cannot be sustained. The decisions of this Court in the case of Raajratna Metal Industries Ltd ( 2014 (8) TMI 598 - GUJARAT HIGH COURT) and National Insurance Co (2015 (8) TMI 571 - GUJARAT HIGH COURT ) shall be squarely applicable to the facts of the case on hand. Under the circumstances on the aforesaid ground alone the impugned notice deserves to be quashed and set aside. - Decided in favour of assessee

Summary

Issues:
Challenge to impugned notice under Section 148 of the Income Tax Act dated 03.09.2004 for reopening assessment for AY 200001.

Analysis:
1. The petitioner, a company, filed its return of income declaring total income. The audit party raised objections regarding subsidy received from the government, which were addressed by the Assessing Officer and the Additional Commissioner of Income Tax. Despite this, the Assessing Officer issued a notice under Section 148 to reopen the assessment after 18 months, alleging that income had escaped assessment due to subsidy not being distinctly shown in the profit and loss account.

2. The petitioner objected to the reopening on jurisdiction and merits grounds, highlighting that the audit objections were resolved satisfactorily and no independent opinion was formed by the Assessing Officer. The Assessing Officer, however, rejected the objections and proceeded with reassessment, leading to the petitioner challenging the notice through a Special Civil Application.

3. The petitioner argued that the notice was unsustainable as it solely relied on audit objections without independent assessment of income escaping. They contended that the subsidy was properly accounted for in the books and should not lead to a belief of income escaping assessment. Citing relevant case laws, the petitioner requested the quashing of the impugned notice.

4. The Revenue, represented by counsel, supported the reopening of assessment, claiming that the subsidy amount was not reflected in the balance sheet, justifying the need for reassessment. However, no reply opposing the petition was filed by the Revenue.

5. The Court noted that the assessment was reopened based on the subsidy issue highlighted by the audit party, without independent opinion by the Assessing Officer. Considering the submissions and lack of denial or dispute of facts, the Court found the notice unsustainable and in violation of established principles. Citing relevant case laws, the Court quashed the impugned notice under Section 148 of the Income Tax Act.

6. Consequently, the Court allowed the petition, quashing and setting aside the impugned notice dated 03.09.2004 to reopen the assessment proceedings for AY 200001, ruling in favor of the petitioner.