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TMI Blog2023 (4) TMI 1179X X X X Extracts X X X X X X X X Extracts X X X X ..... stion of issuing second notice for the same purpose would not arise. The observations in the decision in Aditya Medisales Ltd. [ 2016 (8) TMI 1235 - GUJARAT HIGH COURT] reflect that the Court was not oblivious of the aspect that in a given case where second notice for reopening was set aside, a piquant situation for the revenue may arise. Position of law enunciating from the decision in Aditya Medisales Ltd. (supra), the petitioner is entitled to succeed. The impugned notice dated 30.03.2019 under Section 148 of the Act, which is a notice for reopening the assessment for the same year under consideration cannot sustain. The same is liable to be set aside. - R/SPECIAL CIVIL APPLICATION NO. 22135 of 2019 - - - Dated:- 11-4-2023 - H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income at Rs. 22,93,460/-. The case was taken in scrutiny by the department. The scrutiny assessment was completed under Section 143(3) of the Act. The total income of the assessee was put at Rs. 67,51,750/- after adding Rs. 44,58,294/- on account of dis-allowance under Section 54F of the Act. 3.1 At this stage, the income tax authority issued notice dated 19.03.2018 to the petitioner under section 148 of the Act seeking to reopen assessment. In the said notice, for reopening of the assessment, it was inter alia mentioned as a ground that the petitioner assessee had sold equity shares of Alpha Graphics to earn long term capital gain of Rs. 71,87,000/-, which was claimed as exempt under section 10(38) of the Act. 3.2 It appears that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addressed by the Division Bench as could be seen from para 13 of the decision in Aditya Medisales Ltd. (supra), The vital question however, remains is, was the second notice of reopening valid? Section 147 of the Act, as is well known, pertains to income escaping assessment under which if the Assessing Officer has reason to believe that any income chargeable to tax has escaped assessment, he may assess or reassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently during the course of the proceedings or recompute the loss or the depreciation allowance or any other allowance, as the case may be, for the concerned assessment year. Under sub-section(1) of sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r assessment or reassessment of income which may have escaped assessment earlier. During such assessment, any income which may come to the notice of Assessing Officer may also be brought to tax. Till this assessment is not completed, it would not be possible for him to form a belief that income chargeable to tax had escaped assessment. Until the assessment, be it original or reopened, is pending before the Assessing Officer, the question of issuing notice for reopening would not arise. As noted, in case of Ranchhoddas Karsondas (supra), the Supreme Court had taken a view that till the assessment proceedings are pending, it cannot be stated that there was escapement of income. To our mind, there is no distinction whether the pending assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itional grounds to support reopening or after withdrawing the first notice to issue a fresh notice which would be beyond a period of four years and thereby sacrifice the reasons already recorded, which would not sustain the test of failure on part of the assessee to disclose truly and fully all material facts. 5.2 In view of the above position of law enunciating from the decision in Aditya Medisales Ltd. (supra), the petitioner is entitled to succeed. The impugned notice dated 30.03.2019 under Section 148 of the Act, which is a notice for reopening the assessment for the same year under consideration cannot sustain. The same is liable to be set aside. 6. At this stage, learned advocate Mr. Karan Sanghani submitted that even though t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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