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2019 (1) TMI 221 - HC - Income TaxReopening of assessment - TDS certificate on which the petitioner relies upon are invalid certificates and have no legal standing - also as doubted to whether the amounts covered under the TDS were deposited with the government or not? - Held that - Ernst & Young Pvt. Ltd. (2004 (12) TMI 39 - GUJARAT HIGH COURT) is of the view that, where, the issue of TDS was dealt with by the Assessing Officer, the department had no ground to invoke provisions of Section 147 and 148 of the Act of 1961. M/s. Phool Chand Bajrang Lal and Another (1993 (7) TMI 1 - SUPREME COURT) lays down what can be construed as a true and full disclosure. In the facts of that case, the Supreme Court did not find the assessee to have made a full and true disclosure for the authorities not to invoke the provisions of Section 147 and 148 of the Act of 1961. S.K. Tekriwal (2012 (12) TMI 873 - CALCUTTA HIGH COURT) deals with the provisions of Section 40(A)(ia) of the Act of 1961. It notes that a portion of the judgment and order was under challenge. The judgment and order under challenge finds that there was no allegation that the Tax Deducted at Source was not deposited with the government account. The department is doubting the deposit of the TDS amount with the government. It is, therefore, imperative that such issue is looked into under the provisions of Section 147 and 148 of the Act of 1961. In the facts of the present case, therefore, not minded to find that, the authorities have acted beyond jurisdiction in invoking the provisions of Section 147 and 148 of the Act of 1961
Issues:
Challenge to notice dated September 28, 2018 under Section 148 of the Income Tax Act, 1961 and the resultant order dated November 28, 2018. Detailed Analysis: The petitioner contests the jurisdiction of authorities under Section 147 and 148 of the Income Tax Act, 1961, arguing that there was no material to assume jurisdiction and no income escaped assessment. The petitioner provided detailed replies during assessment proceedings, including TDS details, which the Assessing Officer considered in the assessment order. The petitioner's appeal from the assessment order did not address TDS issues. The petitioner relies on precedents like Ernst & Young Pvt Ltd case and Amiya Sales & Industries case to support the argument that once an issue is settled by the Assessing Officer, it cannot be reopened under Section 147 and 148. The petitioner also challenges the invocation of Section 40(A)(ia) based on Commissioner of Income Tax case. The respondent argues that TDS was not deposited with the government, leading to income escaping assessment, justifying the use of Sections 147 and 148. Reference is made to the definition of true and full disclosure under the Income Tax Act, 1961. The notice under Section 148 for the assessment year 2012-13 questions the validity of TDS certificates and whether the amounts were deposited with the government. The Assessing Officer's notice under Section 142 called for TDS details, but the assessment order did not specifically address TDS. The petitioner's appeal against the order did not cover TDS issues. The department did not appeal the assessment order. The key issues are whether the petitioner failed to make a true and full disclosure and if income escaped assessment justifying Sections 147 and 148. The judgment references Ernst & Young Pvt. Ltd. case and Amiya Sales & Industries case to argue against invoking Sections 147 and 148 when the Assessing Officer already addressed the issue. The definition of true and full disclosure from M/s. Phool Chand Bajrang Lal case is highlighted. The doubt regarding TDS deposit with the government necessitates examination under Sections 147 and 148. The judgment concludes that the authorities did not exceed jurisdiction in applying Sections 147 and 148 in this case. In conclusion, the writ petition challenging the notice and order is disposed of without costs.
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