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TMI Blog2013 (5) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... ucting tax at source. The entire basis for issuance of impugned notice thus lack validity. As decided in in case of Ratna Trayi Reality Service Pvt. Ltd. [2013 (4) TMI 677 - GUJARAT HIGH COURT] as relying on ACIT vs. Rajesh Jhaveri Stock Brokers P. Ltd. [2007 (5) TMI 197 - SUPREME Court] it is equally well settled that merely because an assessment was not previously framed after scrutiny, would not give unlimited right to the Assessing Officer to reopen by merely issuing a notice without valid reasons. Even in case of reopening of an assessment which was previously accepted under section 143(1) of the Act without scrutiny, the Assessing Officer would have power to reopen the assessment, provided he had some tangible material on the basi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Out of this commission paid to different parties, you have to deduct TDS under the provisions of I.T. Act. But on perusal of records it came to notice that you are failed to deduct TDS on commission paid to different parties, which has to be this allowed under the provisions of the I.T. Act. This has resulted to the escapement of Income to the tune of Rs.11,67,713/. 2.3 Upon receipt of the reasons, the petitioner raised objections to the notice for reopening under communication dated 10.7.2012. Such objections were, however, rejected by the respondent by order dated 21.1.2012. The petitioner has therefore, approached this Court challenging the notice of reopening. 2.4 We may notice that for the said Assessment Year 200506, the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner submitted that notice for reopening the assessment has been issued beyond the period of four years from the end of the relevant assessment year. He submitted that though the original assessment was not made after scrutiny, nevertheless there was no reason for the Assessing Officer to believe that income chargeable to tax had escaped assessment. He drew our attention to the reasons communicated for issuing the notice supplied to the assessee, which is produced at Annexure E, page 25 to the petition. He also relied on the documents at Annexure I, page 31, which is the xerox copy of the original reasons recorded by the Assessing Officer. He submitted that there was great degree of variance between the two documents. He further submitted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levant to the assessment year under consideration, the petitioner had not paid any commission and therefore, there was no question of deducting tax at source. The entire basis for issuance of impugned notice thus lack validity. In our recent judgment dated 9.4.2013 passed in Special Civil Application No.2198 of 2013 in case of Ratna Trayi Reality Service Pvt. Ltd., we made following observations in context of a notice for reopening issued by the AO, where originally assessment was not framed after scrutiny. 11.Having thus heard learned counsel for the parties and having perused the documents on record, we need to examine the validity of the notice for reopening, in the context of reasons recorded, of course, bearing in mind that, in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 143(2) of the Act has become time barred and further that in any case, reasons recorded would not permit the Assessing Officer to reopen the assessment. 12. In this context, referring to the decision of Apex Court in case of Assistant Commissioner of Income Tax vs. Rajesh Jhaveri Stock Brokers P. Ltd. (supra) and other judgements, following observations were made: 11. It is undoubtedly true that proviso to section143(2) of the Act prescribes a time limit within which such notice could be issued. It is equally well settled that such notice is mandatory and in absence of notice under section 143(2) of the Act within the time permitted, scrutiny assessment under section 143(3) cannot be framed. However, merely because no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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