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TMI Blog2017 (3) TMI 1524X X X X Extracts X X X X X X X X Extracts X X X X ..... ide. - Decided in favour of assessee - SPECIAL CIVIL APPLICATION NO. 20754 of 2016 - - - Dated:- 23-3-2017 - MR. M.R. SHAH AND MR. B.N. KARIA, JJ. FOR THE PETITIONOER : MS VAIBHAVI K PARIKH, ADVOCATE FOR THE RESPONDENT : MR NITIN K MEHTA, ADVOCATE ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH) [1.0] By way of this petition under Article 226 of the Constitution of India the petitioner has prayed for an appropriate writ, order or direction to quash and set aside the impugned notice dated 21/03/2016 under Section 148 of the Income Tax Act (hereinafter referred to as the Act ) by which the Assessing Officer has sought to reopen the assessment for the Assessment Year 2009-10 alleging inter alia that the income chargeable to tax for the relevant Assessment Year has escaped the assessment within the meaning of Section 147 of the Act. [2.0] The facts leading to the present Special Civil Application in nutshell are as under; [2.1] The petitioner assessee is engaged in the business of dealing in scrap of iron and steel, ferrous and non ferrous metal, PVC material and old scrap cables. The petitioner assessee filed the return of income for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sideration has been reopened on the count that the amount in respect of two parties i.e. (1) AL Rahim Closeout Inc. amounting to ₹ 12,76,500/- (2) ALMahaseel Scrap Trading C. LL.C. Amounting ₹ 1,33,74,482/- is shown as outstanding liability in the books of accounts and since such liability has not been discharged, such liability is deemed to have been in cessation as per the provisions of Section 41(1) of the Act and accordingly a sum aggregating to ₹ 1,46,50,982/- is deemed to be profit and gain of the business or profession for the year under consideration. Subsequently, vide letter dated 07/10/2016 the respondent informed the petitioner assessee that the reasons for reopening supplied earlier vide letter dated 29/07/2016 were draft reasons, which were not the basis of satisfaction of the appropriate authority for reopening the case of the petitioner assessee. Thereafter, the Assessing Officer supplied the correct reasons recorded for reopening the assessment for the Assessment Year 2009-10. The correct reasons recorded to reopen the assessment for the Assessment Year 2009-10 reads as under; Reasons for re-opening in the case of Shri Sandeepkumar M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment Year 2009-10, the petitioner assessee raised the objections against reopening, which has been disposed of against the petitioner assessee. Hence, the petitioner assessee has preferred the present petition challenging the impugned notice of reopening. [3.0] Ms. Vaibhavi Parikh, learned advocate appearing on behalf of the petitioner assessee has vehemently submitted that the impugned notice under Section 148 of the Act and reopening of the assessment for the Assessment Year 2009-10 is bad in law and against the proviso of Section 147 of the Act. It is submitted by Ms. Parikh, learned advocate appearing on behalf of the petitioner assessee that the assessment for the Assessment Year 2009-10 is sought to be reopened beyond the period of four years from the relevant Assessment Year, and therefore, unless and until the condition precedent as per proviso to Section 147 of the Act are complied with i.e. unless and until it is found that there was any suppression of material fact and there was any non-disclosure on the part of the petitioner assessee in not disclosing true and correct facts for the Assessment Year, the Assessing Officer is not justified in reopening the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such creditors. It is submitted that therefore thereafter when the Assessing Officer having been satisfied with respect to the genuineness of the creditors for the year under consideration and having found that the petitioner assessee did not disclose true and correct facts before the Assessing Officer and as such the Assessing Officer did not go in detail with respect to the genuineness of the creditors from whom the petitioner assessee purchased the goods and thereafter when the Assessing Officer has initiated the reassessment proceedings, the same cannot be said to be bad in law and /or contrary to the proviso of Section 147 of the Act. It is submitted that as such genuineness of the creditors /foreign creditors from whom the petitioner assessee purchased the goods and to whom a large sum was due and payable was not considered in detail by the Assessing Officer while framing the scrutiny assessment for the Assessment Year 2009-10. It is submitted that therefore the Assessing Officer is justified in reopening the assessment for the Assessment Year 2009-10 even beyond the period of four years. Making the above submissions, it is requested to dismiss the present petition. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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