9911796707
TMI Blog2017 (1) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... lief to the petitioner. The writ petition is, accordingly, dismissed. - Writ Petition (M/S) No. 2813 of 2016 - - - Dated:- 26-12-2016 - V. K. Bist, J. For the Petitioner : Mohit Maulekhi, Advocate For the Respondent : H. M. Bhatia, Standing Counsel JUDGMENT V. K. Bist, J. Petitioner has approached this court seeking following reliefs: i) A writ, order or direction in the nature of certiorari quashing the impugned notice u/s 148 of the Income Tax Act, 1961, dated 31.03.2016 issued by the respondent, purposing to reassess the income for the A.Y. 2009-10 and pursuant reassessment proceedings. ii) A writ, order or direction in the nature of mandamus directing the respondent restraining them from proceeding any further in pursuance of notice u/s 148 of the Income Tax Act, 1961, dated 31.03.2016. 2. Brief facts of the case, as narrated in the writ petition are, that the petitioner/assessee is Association of Persons (AOP) namely Maruti Sah Brothers PAN AABAM0677P and during the relevant year i.e. AY 200910 derived income from retail liquor trade and no other source. Maruti Nandan Sah is its Principal Member. The petitioner/assessee received two copi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hown any income from capital gain whereas the petitioner/assessee was never enquired about the aforesaid AIR transaction and in fact the income from capital gain pertains to Sri Maruti Nandan Sah PAN BBXPS5336N, an individual, who has been assessed and taxed on the said income from capital gains. It is also alleged that as per AIR details the assessee made payment of ₹ 2,05,23,993/- for purchase of liquor whereas all the stated AIR transactions relate Maruti Nandan Sah PAN BBXPS5336N, an individual. The respondent has distorted the fact and the AIR enquiry report has been wrongly taken against the petitioner. It is also the case of the petitioner/assessee that the petitioner/assessee had also brought to the notice of the respondent that apart from completely erroneous appreciation of the factual position, the department had initiated proceedings u/s 148 of the Act on the basis of the AIR query initiated w.r.t. Maruti Nandan Sah PAN BBXPS5336N, an individual, whereas, no such proceedings were adopted in the case of the petitioner/assessee PAN AMBAM0677P, an AOP. This was sufficient to drop the proceedings. The petitioner further submits that the Central Board of Direct Taxe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome at ₹ 3,96,380/-, the return was processed u/s 143(1) accepting the returned income. 4. That this office received PAN based AIR information regarding following transactions in respect of the AOP for F.Y. 2008-09 relevant to A.Y. 2009-10. (i) Purchase of liquor for human consumption, timber obtained not by forest lease, parking lot interest other than securities amounting to ₹ 2,05,23,993/- 5. That a query letter regarding above transactions was issued to the assessee by this Office on 20.10.2015 giving him compliance date for 04.11.2015. This letter was duly received by the assessee on 21.10.2015. In response, assessee submitted his written reply which was received in this office on 11.03.2016. 6. That as per assessee s written submission, Shri Maruti Nandan Sah, the Principal Member of AOP has submitted that the transactions are reflected in its book of accounts of the AOP duly audited u/s 44AB of the IT Act 961. 7. That on perusal of Trading Profit Loss account of the assessee AOP for the F.Y. 2008-09, it is revealed that the purchase has been shown at ₹ 1,80,68,601/-. But as per 26AS details of the assessee for the same F.Y., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sah as individual is false as per documentary evidence. 4. Learned counsel for the petitioner submits that the petitioner/assessee has filed his return for the relevant Assessment Year 2009-10 online within stipulated time on 31.03.2010. The respondent Department on the basis of AIR information available with the Department issued a query letter dated 31.08.2015 to Maruti Nandan Sah in his capacity as an individual assessee, inasmuch as the Assessee is identified by his PAN BBXPS5336N in the said query letter and sought explanation to the amount of ₹ 1,74,76,000/- and ₹ 2,05,23,993/- for the Financial Year 2008-09. He further submits that the respondent Department also issued notice u/s 148 dated 31.03.2016 which was served upon the Principal Member of the Assessee AOP for the first time vide letter dated 13.05.2016 on the basis of query letter issued to Maruti Nandan Sah in his capacity as an individual assessee, inasmuch as the Assessee is identified by his PAN No.BBXPS5336N and not as the Principal Member of the Assessee AOP having PAN No.AABAM0677P. 5. Learned counsel further submits that the Respondent Department claims the query letter dated 31.08.2015 is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and is liable to be cancelled. Further, the AIR information narrated as per AIR details the assessee made payment of ₹ 2,05,23,993/- for purchase of liquor and timber and parking lot contract etc. is specific to Maruti Nandan Sah (Mr) an individual, therefore the comparison of the aforesaid information with the Final accounts of the Assessee (AOP) is illusionary, deceptive and incorrect and therefore the reopening proceedings is also illegal. 10. Per contra, learned counsel for the respondent reiterates his case what is said in the counter affidavit and submits that the notice dated 31.03.2016 was served in the premises of the assessee and the authorized representative, available on the premises of the assessee, received the said notice and as per the Judgment of Hon ble Apex Court in the case of GKN Drive Shafts (India) Ltd. vs. Income Tax Officer 2003(1) SCC 72, the Income Tax Department is duty bound to give the opportunity of the hearing to the petitioner. In the present case, in compliance to notice the assessee himself represented his case through his authorized representative, filing the objection against the said notice before the Assessing Officer and he never r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x has escaped assessment for any assessment year, he may, subject to the provisions of sections 148 to 153, assess or reassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceedings. Power of assessment/reassessment is subject to certain conditions. 14. Points raised by the petitioner are based on facts which can be appreciated by the Assessing Officer. Machinery has been provided by the Act for assessment/reassessment. Before making the assessment, reassessment or recomputation under section 147, the Assessing Officer should serve on the assessee a notice requiring him to furnish a return of income within such period as may be specified in the notice. But, before issuing a notice, the Assessing Officer is required to record reasons for doing so. In the present case, I find that required notice has been sent and reasons for issuance of notice/initiation of proceeding have also been disclosed to the petitioner. The argument of the petitioner regarding receipt of query letter by Maruti Nandan Sah can also be looked into by the Assessing Officer. Required sanction was also obta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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