9911796707
TMI Blog2016 (7) TMI 328X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Constitution of India, challenges the notice dated 16th March, 2015 issued under Section 148 of the Income Tax Act,1961 (the Act), seeking to reopen the Assessment for the Assessment Year 2008-09. 3 The Petitioner is a Trust. The sole trustee of the Petitioner is Jolly Maker 1 Premises Cooperative Housing Society (Society). The return of income of the PetitionerTrust for the Assessment Year 2008-09, was processed under Section 143(1) of the Act. From the returns of income of the Society for the Assessment Year 2008-09, the Assessing Officer was of the prima facie view that income chargeable to tax in the hands of the PetitionerTrust had escaped Assessment. 4 In the above view, the impugned notice dated 16th March, 2015 was issued, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ights of the joint owners in the Nariman Bhavan property. In view of the above and without prejudice, returns are submitted, as under inter alia In the case of the Society, by including the property income under section 60 of the I. T.Act, 1961; and In the case of Trust, declaring other income but excluding Property Income in view of inclusion of its property income in the return of the Society under sec. 60 of the I. T. Act, 1961. Jolly Maker 1 Trust is a distinct and separate entity created under oral declaration of trust." 2.1 In the above information, it has been stated that property income from Nariman Bhavan belongs to Jolly Maker 1 trust, Jolly Maker Coop. Society as trustee, is representative assessee u/s. 161 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore both these incomes are to be considered in the case of trust, therefore both these incomes are to be considered in the case of trust and society being the trustee, was required to be submit separate return for income of trust, in the representative capacity. 3. I, therefore, have reasons to believe that on account of failure to file return of income in representative capacity for income pertaining to trust. Income chargeable to tax to the extent of Rs. 7,04,16,964/( rental income of Rs. 518,29,574/and interest income of Rs. 185,87,360/) has escaped assessment. Issue notice u/s. 148 for AY 2008-09." 5 The Petitioner Trust by its letter dated 26th October, 2015 objected to the impugned reopening notice dated 16th March, 2015. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examined the same could not have formed any opinion. Thus, in such case, the reopening notice cannot be assailed on the ground of change of opinion as there was no opinion formed in the first instance. Similarly, the first proviso to Section 147 of the Act, which provides as a condition precedent for issuing a notice beyond a period of four years from the end of the relevant Assessment Year, failure on the part of the Assessee to fully and truly disclose all material facts necessary for Assessment, will not apply, as the proviso only applies where an Assessment has been done under Section 143(3) of the Act. Further, as observed by the Apex Court in ACIT v/s. Rajesh Jhaveri 291 ITR 500 at the stage of issuing of notice, the only question is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is independent and the reasons recorded for reopening have to be independently examined in the context of the Assessee whose Assessment is sought to be reopened. 10 The fourth submission of the Petitioner that income which is alleged to have escaped Assessment has already been disclosed in the return of the Society and tax paid on the same, therefore no income chargeable to tax, has escaped Assessment. This submission is not sustainable. This for the reason that it is the prima facie view of the Revenue that the deduction claimed under Section 80P of the Act by the Society as a Cooperative is not available to the Petitioner Trust. Thus the chargeability to tax has to be seen in the context of the Assessee whose income it is. 11 So far a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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