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TMI Blog2023 (3) TMI 1245X X X X Extracts X X X X X X X X Extracts X X X X ..... is of any fresh tangible material distinct from what was already available during the assessment proceedings, and as such, the petitioner has made out a case to fall within the proposition as laid in the case of Shanti Enterprise [ 2016 (9) TMI 1614 - GUJARAT HIGH COURT ] There was no allegation that there is any failure on the part of the assessee, i.e., the petitioner to truly and fully disclose the material facts, and further the reopening is sought on the basis of verification of record, and as such, there was no fresh tangible material distinct from what was available at the time of assessment proceedings and by making a reference to the notice by virtue of which the petitioner was called upon to furnish all the details as stated herein above, the assessment order is passed, and as such, this entire exercise which is sough to be undertaken by the authority is based upon change of opinion. Contention with regard to escapement of income being assessed, the respondent-authority has hardly made out any case for invoking the provisions of Section 56(1) or Section 68. Since the entire exercise is sought to be undertaken on the basis of change of opinion, simply because the Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome of the petitioner. Despite the aforesaid circumstance, according to the petitioner, the respondent authority has issued notice under Section 148 of the Income Tax Act on 21st March, 2021 calling upon the petitioner to submit the return of income of A.Y. 2015-16. The reasons were recorded on 20th March, 2021 which were supplied to the petitioner on 19th May, 2021. After submission of preliminary objections on 17th June, 2021 through E-mail on 28th June, 2021 and on income e-filing portal on 9th July, 2021, questioning the validity of notice under Section 148 of the Act. The respondent-authority, however, without considering the materials on record, disposed of the objections vide order dated 22nd November, 2021 and simultaneously, issued notice under Section 142(1) on 22nd November, 2021 calling upon the petitioner to supply the details in relation to the assessment for the aforesaid year in question. The petitioner has submitted that the said action on the part of the respondent-authority is in conflict with the guidelines framed by this very High Court in its judgment and not in consonance with the proposition, which is well established, and as such, by raising multiple conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to issuance of share and consequential premium etc. have been disclosed before the Assessing Officer during the original scrutiny, now it is not proper on the part of the respondent-authority to reopen the assessment beyond the period of four years in the absence of any failure on the part of the petitioner in truly and fully disclosing the facts. Hence, the impugned notice is not sustainable in the eye of law. To substantiate his contention, learned advocate Mr. Soparkar has made a reference to the decision in the case of Intercontinental (India) vs. Dy. CIT, reported in 2016 (73) taxmann.com 232 (Guj) and in the case of Jivraj Tea Ltd., reported in (2016) 386 ITR 298, and as such, has contended that even on the basis of this principles also, it is not open for the authority to reopen the assessment. 8. The learned advocate Mr. Soparkar has further submitted that the income, in fact, has not escaped from assessment, particularly, when the assessee has issued shares to non-resident parent company and the share premium received is exempted from the taxation. There is no substance in the allegation of Assessing Officer in relation to the addition under Section 56(1) or under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act reflecting on Page-31 contains certain queries, in which, Query No.3 specifically requires details about the share capital increased during the year along with confirmation and ITR of the person from whom the same was received, and Query No.4 requires details of premium received on shares during the relevant year including other details. The above said two queries raised in the aforesaid notice has been specifically replied by the petitioner on 5th September, 2017, and if we peruse the assessment order dated 6th November, 2017 reflecting on Page-47, Annexure-E to the petition, it appears that, in the very first paragraph, there is a reference of the said notice dated 23rd August, 2017, by virtue of which, necessary details were called for. Yet another aspect which cannot be ignored is that from the reasons recorded while disposing of the objections reflecting on page-51, more particularly paragraph Nos.1 and 2, it is quite clear that such material was very much available since the said objections came to be disposed of on the basis of verification of the case record, and as such, when that be so, it is difficult for this Court to come to a conclusion that there is a failur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... writ of prohibition or certiorari would not issue against an executive authority, the High Courts had power to issue in a fit case an order prohibiting an executive authority from acting without jurisdiction. Where such action of an executive authority, acting without jurisdiction subjected, or was likely to subject, a person to lengthy proceedings and unnecessary harassment, the High Courts would issue appropriate orders or directions to prevent such consequences. The existence of such alternative remedies as appeals and reference to the High Court was not, however, always a sufficient reason for refusing a party quick relief by a writ or order prohibiting an authority acting without jurisdiction from continuing such action. When the constitution conferred on the High Courts the power to give relief it becomes the duty of the Courts to give such relief in fit cases and the courts would be failing to perform their duty if relief were refused without adequate reasons. 13. Further, as we have already discussed, there was no allegation that there is any failure on the part of the assessee, i.e., the petitioner to truly and fully disclose the material facts, and further the reop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is within a period of four years. The ratio laid down by the aforesaid decision referred to above would clearly clinch the issue and therefore, the action of revenue in reopening the assessment is not justified as it would tantamount to be on the basis of mere change of opinion which is not permissible as the conditions which has been retained under Section 147 is also not satisfied. The relevant paragraph Nos.10 and 16 in the case of Gujarat State Board of School Textbooks (supra) read thus; 10. Having heard learned counsel appearing on behalf of the respective parties and having gone through the relevant record of the petition it is transpired that for the year under consideration for which the reopening is inclined, on earlier occasion, the scrutiny assessment has taken place wherein the issue has been gone into thoroughly as has been canvassed before us. It is also prevailing on record that in the earlier year, the very same issue with respect to A.Y 2004-05 has arisen wherein also as per the record, the reopening proceedings were dropped and thereafter it is noticed that there is no material change in activity of the Board which is also indicative of the fact that w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ply because the Assessing Officer, while passing an order of assessment, has not dealt with specifically in an elaborate form, would not be a ground for opening of an assessment. At this stage, we deem it proper to refer to the decision delivered in a recent past in the case of a very same assessee reported in (2023) 146 taxmann.com 193 (Gujarat) for the A.Y. 2016-17, in which also, the issue almost similar, has been considered by the Court and the relief was granted to the concerned petitioner. At this stage, we may deem it proper to quote the relevant observations as contained in Para-5.7, which reads thus; 5.7. The first decision which has been brought to the notice is a decision dated 28.09.2016 passed by the co-ordinate Bench of this Court in Special Civil Application 15068 of 2010 in which after considering several decisions, it came to be held that reopening of assessment was impermissible. Paragraph 8 of the said decision is indicating a proposition that when the issue has been thoroughly gone through during the assessment proceedings, simply because the assessing officer has not assigned any independent reasons on the issue would not amount that no opinion is formulate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich the assessee would have no control whatsoever. Whether the Assessing Officer allows such a claim, rejects such a claim or partially allows and partially rejects the claim, are all options available with the Assessing Officer, over which the assessee beyond trying to persuade the Assessing Officer, would have no control whatsoever. Therefore, while framing the assessment, allowing the claim fully or partially, in what manner the assessment order should be framed, is totally beyond the control of the assessee. If the Assessing Officer, therefore, after scrutinizing the claim minutely during the assessment proceedings, does not reject such a claim, but chooses not to give any reasons for such a course of action that he adopts, it can hardly be stated that he did not form an opinion on such a claim. It is not unknown that assessments of larger corporations in the modern day, involve large number of complex claims, voluminous material, numerous exemptions and deductions. If the Assessing Officer is burdened with the responsibility of giving reasons for several claims so made and accepted by him, it would even otherwise cast an unreasonable expectation which within the short frame of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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