9911796707
TMI Blog2022 (11) TMI 846X X X X Extracts X X X X X X X X Extracts X X X X ..... Year 2011-12. 2. The assessee has raised the following grounds of appeal: 1.0 The grounds of appeal mentioned hereunder are without prejudice to one another. 2.0 The learned Commissioner of Income Tax (Appeals), Jamnagar [hereinafter referred to as the "CIT(A)" erred on facts as also in law in rejecting the ground of appeal related to validity of notice issued u/s 148 of the Income tax Act, 1961. That on facts as also in law, initiation of action u/s. 147 of the Act is invalid and assessment made on such invalid initiation deserves to be quashed and may kindly be quashed. 3.0 The Id. CIT(A) erred on facts as also in law in confirming addition of' 2,07,1327- on account of alleged excessive payment of remuneration to partners on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs remuneration were provided or available with the AO at the time of original assessment framed under section 143(3) of the Act. There was no fresh material came to the notice of the AO. Therefore, the reason recorded for reopening the re-assessment under section 147 of the Act is nothing but change of opinion which is not allowed under the provision of the Act. Hence, the reopening of the assessment should be held as void-ab-initio. The assessee in support of its contention relied upon various judgment of different Hon'ble Courts and same were incorporated in the in order of the leaned CIT(A) along with submission. 8. However the learned CIT(A) after considering the submission of the assessee and finding of the AO upheld the validity of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of assessment proceeding u/s.143(3) of the Act. As per the AO however, the appellant had submitted a resolution for modifying the clause of partnership deed said to be made on 01/04/2010, but the same is not on non judicial stamp paper and hence has no relevance over the modification of original partnership deed. As per the AO the resolution for modifying the clause of partnership deed said to be made on 01/04/2010 as submitted by the appellant was just an afterthought to escape the taxation. As per the AO the appellant had submitted original copy of resolution and the same was also apparent from the quality and appearance of the paper. As per the AO the resolution was also not on non judicial stamp paper and hence it had no relevance. As p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f both the parties and perused the materials available on record. In the case on hand, the proceedings under section 147 of the Act were initiated after recording the reasons as extracted below: On verification of the records, it is noticed that as per the partnership deed the working of remuneration to partners is as under (page no.7 of the Deed) In respect of the first 75,000/- Rs.50,000/- or 90% of the Book profit whichever is higher. In respect of the next Rs.75,000/- @ 60% of the Book Profit. In respect of the balance amount - 40% of the Book profit. The book profit of the firm ( as per the assessee own working comes to Rs.8,48,161/-. Hence, the admissible remuneration works out to Rs.3,91,764/- as per the above condition sti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entioned in the notice for reassessment are based on mere change of opinion and therefore, the reopening of the assessment proceeding is not permissible in the facts and circumstances of the case. The aforesaid finding cannot be said to be perverse. For the aforementioned reasons, the substantial questions of law involved in this appeal are answered against the revenue and in favour of the assessee. 12.3 The principles laid down by the Hon'ble Karnataka High court and subsequently confirmed by Hon'ble Supreme Court in the case cited above are squarely applicable to the facts of the present case. Admittedly, the AO on verification of the same set of documents which were available during the original proceedings formed reasons to believe tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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