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TMI Blog2021 (6) TMI 557X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner against the reopening of the assessment for the aforesaid Assessment year 2007-2008. 2.Regular scrutiny Assessment was completed under Section 143(3) of the Income Tax Act an assessment order was passed on 31.12.2009. Thereafter, at the fag end of the limitation, the impugned notice dated 29.03.2014 was issued to the petitioner under Section 148 of the Income Tax Act, 1961. The reasons given for reopening of the assessment was communicated to the petitioner vide letter dated 06.08.2014 reads as under:- ''During the A.Y.2007-2008, the assessee has paid a sum of Rs. 1,40,00,000/- to Shri C.K.Ranganathan apart from directors remuneration of Rs. 99,21,973/-. The same requires to be disallowed u.s 36(i)(ii). Since there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisions of Section 147. It is also true that the AO has not brought on record any failure on the part of the appellant to disclose fully and truly all material facts necessary for its assessment.'' 5.The learned counsel for the petitioner submits that similar reasonings has to be adopted for the present case as well as for the Assessment year 2007-2008. He further submits that for the Assessment year 2011-12, an appeal before the Commissioner of Income Tax (Appeals) was pending on the basis of change of opinion for the reopening of the Assessment under Notification dated 29.03.2014 under Section 148 of the Income Tax Act. It is fairly submitted that even though, the petitioner had earlier filed a separate writ petition, the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 14,000 3,883 Total 28,958 14,770 8.The learned counsel for the petitioner further submits that the returns filed for the Assessment year 2007-2008 on 31.12.2019 along with the annexures also gave the particulars of the commission paid to the Chariman cum Managing Director of the petitioner. 9.It is further submitted that while passing the Assessment order under Section 143(3) of the Income Tax Act, the Assessing Officer had disallowed the several expenses and some of the other items which were missed out were also sought to be rectified under Section 154 of the Income Tax Act by exercising its jurisdiction under the aforesaid provision vide order dated 09.3.2010. 10.The learned counsel for the petitioner also refers to form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rendered, dividend is a return of investment and is paid to all its shareholders equally. It was thus held that if the commission is paid for actual services rendered, section 36(1)(ii) will not apply. This decision was followed by this Court in CIT Vs.Career Launcher India Ltd [2012] 207 Taxman 28/20 taxmann.com 637 (Delhi). These decisions apply to the present case. The substantial question of law in ITA No.669/2012 is answered in favour of the assessee. 12.That apart, reliance was placed on the decision of the Hon'ble Supreme Court and other High Courts and specific reference was made to the decision of the Hon'ble Supreme Court in Assistant Commissioner of Income Tax vs. ICICI Securities Primary Dealership Ltd [2012] 24 taxma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s or other evidence from which material after due negligence facts can discovered by the Assessing Officer does not amount to disclose within the meaning of Section 147 of the Income Tax Act. 16.He therefore submits that, even though, the petitioner had filed an audit report under Section 44AB of the income tax act and the annual report and other documents along with the returns on 20.03.2009, it could not be stayed that there was a true and full disclosure at the time of filing of the returns. 17.It is therefore submitted that the present writ petition is liable to be dismissed. He therefore submits that it is open for the petitioner to produce the order passed by the Commissioner of Income Tax (Appeals) passed on 15.12.2013 for the Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal is pending as on dated. Therefore, even on merits it is not permissible to the respondents to proceed with the impugned proceeding contrary to the said order.
22.Further, as an assessing officer, the respondent cannot take a different view for the assessment year 2007-2008 from the view is taken for the assessment year 2008-2009 by the Commissioner of Income Tax (Appeals) in the light of the decision of the Hon'ble Supreme Court, Union of India Vs Kamalakshi Finance Corporation Limited 1991 (55) ELT 333.
23.Under these circumstances, this Court is inclined to allow this writ petition. Accordingly, this writ petition is allowed. No cost.
Consequently, connected Miscellaneous Petition is closed. X X X X Extracts X X X X X X X X Extracts X X X X
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