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TMI Blog2021 (1) TMI 486X X X X Extracts X X X X X X X X Extracts X X X X ..... ending the admission, hearing and final disposal of this petition, to stay the implementation and operation of the notice at Annexure-A to this petition and stay the further proceedings for the Assessment Year 2011-12; (c) any other and further relief deemed just and proper be granted in the interest of justice; (d) to provide for the cost of this petition." 2. The subject matter of this writ-application is the impugned notice issued under Section 148 of the Income Tax Act, 1961 (for short, 'the Act 1961') for re-opening of the assessment for the Assessment Year 2011-12 on the ground that the income chargeable to tax had escaped assessment within the meaning of Section 147 of the Act 1961. The notice dated 31st March 2018 issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Laxmi Exports contains a clause to provide interest and remuneration to its partners as per the provision of Section 40(b) of the Act 1961. 5. It is the case of the department that the firm did not make any provision for the said interest and remuneration to be provided to the partners in accordance with the provisions of the partnership deed during the Assessment Year 2011-12. 6. It has come to the notice of the department that M/s.Vijya Laxmi Exports paid Rs. 12,74,351=00 as interest on the partners capital and Rs. 44,97,148=00 as remuneration to its partners, but at the same time, claimed excess deduction of Rs. 57,71,499=00 under Section 10AA of the Act 1961 which was liable to be taxed in the hands of the partners. According to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er dated 20.12.2018 passed by this Court in the case of Vijya Laxmi Exports in Special Civil Application No.20132 of 2018 to submit that in the case of the partnership firm also, the Assessing Officer sought to reopen the assessment on the ground that the firm had claimed excess deduction of Rs. 57,71,499/- under Section 10AA of the Income Tax Act, 1961 which was liable to be taxed in the hands of the partners. It was pointed out that in that case the court has issued notice and has restrained the respondents from passing the final order. 2. Referring to the reasons recorded, it was submitted that in the case of the partners, the Assessing Officer seeks to reopen the assessment on the ground that M/s.Vijya Laxmi Exports has paid Rs. 12,74 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... final order without the prior permission of this Court. Direct service is permitted today." 12. Mr.Tushar Hemani, the learned senior counsel assisted by Ms.Vaibhavi Parikh and Mr.Parimal Parmar, the learned counsel appearing for the writ-applicant, submitted that the Revenue is not justified in re-open the assessment proceedings on the grounds as assigned in the reasons. He would submit that from the computation of total income, tax audit report and annual accounts of the partnership firm, no interest or remuneration had been paid by the firm to its partners. The case of the writ-applicant for the year under consideration was taken up for scrutiny assessment under Section 143(3) of the Act 1961. The Assessing Officer, at the relevant point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having regard to the reasons assigned for re-opening of the assessment, this Court may not interfere. According to Ms.Raval, tangible material has come to the notice of the department, and on the basis of which, the department could be said to be justified in issuing the notice for the purpose of re-opening of the assessment. 17. In such circumstances referred to above, Ms.Raval prays that there being no merit in this writ-application, the same may be rejected. 18. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is, whether the Revenue is justified in re-opening the assessment beyond the period of four years under Section 147 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions of law which came to be considered by this Court are as under : "Whether on the facts and circumstances of the case and in law, the Hon'ble ITAT was justified in not appreciating the fact that by not providing interest and remuneration to the partners, the firm has claimed higher profits leading to higher claim of deduction u/s 80IB of the Act and thus, devoiding the revenue from due amount of tax? (B) "Whether on the facts and circumstances of the case and in law, the Hon'ble ITAT was justified in not appreciating that the Section 80IB(10) enables AO to re-compute the profit of undertaking claiming deduction u/s 80IB i.e. the partnership firm as in the present case and not the case of partner's admissibility towards interest/ rem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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