9911796707
TMI Blog2010 (7) TMI 574X X X X Extracts X X X X X X X X Extracts X X X X ..... i to set aside the proceedings dated 5.11.2009 and 24.12.2009 in even Pan No.AACCC3395H relating to the assessment years 2006-2007, 2007-2008 and 2008-2009. 4. The brief facts, which are relevant for the disposal of the issue in hand are as follows: The petitioner is a club providing services in the form of entertainment and relaxation to its members and for the purpose of getting entry into the club members are bound to pay life membership fee. The members are in addition to life membership fee bound to pay only monthly or annual subscription to the club to enjoy the services rendered. While submitting the returns for every assessment year, the petitioner used to treat the life membership fee collected every year as capital ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 ITR page 1. 5. Pending appeals above referred to the returns were filed for the subsequent years i.e. 2006-2007 to 2008 -2009 wherein also the life membership fee is treated as capital and not as revenue. The returns were duly received by the assessing officer, but no acknowledgment was issued and no assessment was made in respect of the returns so filed. However, the petitioner club is by notice dated 05.11.2009 purported to be issued under Section 142(1) of the Income Tax Act, 1961, called upon by the Assistant Commissioner of Income Tax, to appear for the enquiry with the documents mentioned in the notice one among which is the membership funds folio in the books of account and registers of members. The petitioner has also duly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll the three writ petitions. 6. The writ petitioner has in these writ petitions challenged the validity of the impugned notices mainly on two grounds that the assessment is already deemed to be completed and the same cannot be reassessed on the ground of escaped assessment under Section 147 of the Income Tax Act. (2) The petitioner has also by relying upon number of judgments of our High Court made in similar writ petitions the copies which are enclosed at pages 31 to 40 of the typed set of papers dated 12.02.2010 filed by the petitioner contended that whether the life membership fee collected is to be treated as capital or revenue is the issue pending adjudication before the appellate authority in the appeals filed in respect of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f escapement of assessment and the assessee challenged the reassessment proceedings and our High Court is pleased to hold that the assessment completed cannot be reassessed under Section 147 of the Act particularly when all the particulars on the basis of which the assessment was reopened were available in the original return. Our High Court is pleased to treat the same as change of opinion and held that the same cannot come under the category of escapement of assessment and accordingly set aside the reassessment proceedings. In the considered view of this Court, the Judgment cited on the side of the petitioner as above referred to, is not applicable to the facts in hand. In this case, the return was only processed, there was neither deemed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -2002 to 2005-2006 and the appeals are admittedly not disposed of till date. The Assessing Officer has initiated the assessment proceedings for the subsequent assessment years on the ground of escapement of assessment only by treating the same lifetime membership fee collected as revenue and as not capital. As rightly argued by the learned counsel for the petitioner any adjudication rendered in the appeal by the appellate authority on the same issue will have greater bearing on the present assessment proceedings for the subsequent years. Under such circumstances, the Judgments of our High Court enclosed in the typed set of papers will certainly come for the rescue of the petitioner. Our High Court is in the various Judgments (1) dated 26.08 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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