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TMI Blog2016 (11) TMI 542X X X X Extracts X X X X X X X X Extracts X X X X ..... uch available on the date of assessment was finalised by the Assessing Officer and therefore, there is no cause for reopening and the respondent has taken a stand that the enquiry report was received only during 2013. There would be no necessity to go into these aspects of the matter, and if done, it would amount to prejudging the issue and giving a go-by to the directives issued by the Hon'ble Apex Court in the case of GKN Driveshafts (India) Ltd., (2002 (11) TMI 7 - SUPREME Court ). Thus, this Court having come to the conclusion that the impugned notice is not barred by limitation, is not inclined to examine the adequacy of the reasons assigned by the respondent for reopening, as the petitioner has to comply with the directives issued in GKN Driveshafts (India) Ltd., (supra). - W. P. No. 29643 of 2015 & M. P. No. 1 of 2015 & WMP. No. 2477 of 2016 - - - Dated:- 8-11-2016 - T. S. Sivagnanam, J. For the Petitioner : Mr. G. Baskar for Ms.S.Sriniranjani For the Respondents : Mrs.Hema Muralikrishnan ORDER The petitioner is a company incorporated under the Indian Companies Act, engaged in the business of providing oil field services to various offshore exploration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. It is submitted that in the case of Kanubhai M.Patel (HUF) (supra), the Division Bench held that till the point of time, the envelopes are properly stamped with adequate postal stamps, it cannot be stated that the process of issue is complete. Referring to the facts of the present case, it is submitted that though the notice is dated 31.03.2015, the postal franking endorsement shows that it was made on 01.04.2015, and the tracking information available in the postal department's website shows that the cover was booked on 02.04.2015 and received by the petitioner on 06.04.2015. Therefore, the entire proceedings are wholly barred by limitation. 5. On the other aspect with regard to reopening of the assessment, reference was made to the order of assessment dated 30.12.2011, (2008-09), and in particular to paragraph 16 of the order, which dealt with dis-allowance under Section 40(a)(i) of the Act, on payments of amounts to non-residents. It is submitted that this contention was considered by the Assessing Officer and the assessment has been completed by order dated 30.12.2011 and this is sought to be reopened based upon certain statements recorded in 2011, which were admitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther submitted that as per the business post arrangement , designated personnel of the Department of Posts collects in person, physically, the documents/communications to be mailed from each of the designated Ranges/Commissionerates and acknowledged in the despatch register maintained in the Ranges/Commissionerates, after which the said personnel carry the documents to the Post Office for onward transmission. Therefore, the procedure of physical handing over of the document by the office of the respondent in the Post Office as given in the Speed Post Operation Manual does not arise. Therefore, it is submitted that issuance of notice is within the time period prescribed under Section 149 of the Act. Further, it is submitted that the decision of the Gujarat High Court in the case of Kanubhai M.Patel (HUF) (supra), is not applicable to the facts of the present case and it is clearly distinguishable. Therefore, it is submitted that the plea of limitation is wholly misplaced and not borne out by facts on record. Further, it is submitted that in the light of the decision of the Hon'ble Supreme Court in the case of GKN Driveshafts (India) Ltd., vs. Income tax Officer Ors., reported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, dated 31.03.2015, stating that he has reasons to believe that the petitioner's income chargeable to tax for the assessment year 2008-09 has escaped assessment within the meaning of Section 147 of the Income Tax Act, 1961. Therefore, the respondent proposed to assess/reassess the income for the said assessment year and directed the petitioner to file returns in the prescribed form. 10. The contentions raised by the petitioner in this Writ Petition are broadly two fold, firstly on the ground that the entire proceedings are barred by limitation as the period of six years for reopening the assessment came to an end on 31.03.2015, and hence the impugned notice is barred by limitation. The second point is on the ground that there is no allegation of suppression and the reopening itself is on account of change of opinion. 11. The impugned proceedings is sought to be questioned on the ground of has been hit by limitation by referring to the postal cover in which the impugned notice dated 31.03.2015, was sent. The postal cover shows the franking endorsement was made on 01.04.2015. Therefore, the petitioner's contention is that though notice was dated 31.03.2015, the same wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the postal cover was received by the designated personnel of the Department of Posts on 31.03.2015. 14. Thus, in the light of the arrangement between the respondent Department and Department of Posts, it is held that the despatch having been done in terms of business post arrangement is sufficient to hold that the notice was despatched well within the period of limitation. Accordingly the first contention raised by the petitioner is rejected. 15. The second contention is on the ground that the impugned proceedings is a clear change of opinion. There may not be a necessity to examine this issue as the same is pre-mature. In terms of the directive issued in GKN Driveshafts (India) Ltd., (supra), as soon as the reasons for reopening are sought for and furnished by the officer, the assessee has to submit his objection. Without doing so, the petitioner has approached this Court. 16. Nevertheless to examine as to whether there is any prima facie case made out by the petitioner on this ground, the Court examined the submissions. On a perusal of the reasons recorded, it is evident that it is not restricted to dis-allowance under Section 40(a)(i) of the Act, alone. The statem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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