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TMI Blog2023 (10) TMI 566X X X X Extracts X X X X X X X X Extracts X X X X ..... /Respondent no. 1 is right in his allegations that petitioner had offered said quantum of long term capital loss, that would still have no impact because petitioner continues to be liable to pay tax on the basis of profits computation as per Section 115 JA - We do not agree with respondent no. 1 that even if, no income had escaped assessment as on the date of the issue of the notice, one had to take into account the position that may arise as a result of further additions that may or may not be made in the final assessment order. He should have realised that he had no jurisdiction to proceed on the basis that some hypothetical income may be detected as a result of further investigations that may be conducted. In the recorded reasons, as all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . J. Pardiwalla, Senior Advocate a/w Mr. Madhur Agarwal i/b Mr. Atul K Jasani. For the Respondents : Mr. Suresh Kumar. ORAL JUDGMENT (PER K. R. SHRIRAM J.) : 1. This petition challenges the notice dated 8th April 2005 seeking to reopen the assessment for A.Y.-1999-2000 under Section 148 of the Income Tax Act, 1961 (the Act). The original return of income was accepted under Meera Jadhav Section 143(1) of the Act. Petitioner paid the tax on the basis of book profits under Section 115 JA of the Act. 2. The reasons in support of the impugned notice proceeds on the basis that an amount of Rs. 17.15 Lacs chargeable to tax has escaped assessment while computing income under the normal provisions of the Act. Petitioner in the objection filed to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that would be deemed to be escaped income chargeable to tax. 5. Section 152(2) of the Act provides that where an assessment is reopened under section 147, the assessee may, if he has not impugned any part of the original assessment order for that year either under sections 246 to 248 or under section 264, claim that the proceedings under section 147 shall be dropped on his showing that he had been assessed on an amount or to a sum not lower than what he would be rightly liable for even if the income alleged to have escaped assessment had been taken into account, or the assessment or computation had been properly made. 6. Affidavit of Director of petitioner Leena Kaushik Makhecha affirmed on 5th April 2022 has been filed, wherein it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er dated 27th January 2014, even if it is stated that Respondent no. 1 is right in his allegations that petitioner had offered said quantum of long term capital loss, that would still have no impact because petitioner continues to be liable to pay tax on the basis of profits computation as per Section 115 JA of the Act. We do not agree with respondent no. 1 that even if, no income had escaped assessment as on the date of the issue of the notice, one had to take into account the position that may arise as a result of further additions that may or may not be made in the final assessment order. Respondent no. 1 should have realised that he had no jurisdiction to proceed on the basis that some hypothetical income may be detected as a result of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is issued without jurisdiction. It will be apposite to reproduce paragraphs 9 to 12 of Judgment of Hon ble Gujarat High Court in Motto Tiles (P.) Ltd. Vs. Assistant Commissioner of Income Tax, Morbi Circle (2016) 73 taxmann.com 176 (Gujarat) and it reads as under: 9. However, on behalf of the petitioner, it has been pointed out that in terms of the reasons recorded, the income chargeable to tax to the extent of Rs. 81,18,000/- has escaped assessment. In the return of income filed by the petitioner, the petitioner has disclosed loss of Rs. 77,51,810/- and the petitioner has been assessed at an income of Rs. 35,96,518/- on the book profit under section 115JB of the Act. It has, accordingly, been contended that even after making the proposed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on book profit of Rs. 2.89, had held that even if the expenditure of Rs. 116.86 lakhs is disallowed, there would be no resultant change in the petitioner s tax liability since the petitioner had already paid much higher tax and had allowed the petition. It appears that the revenue has accepted the said decision and has not challenged the same before the higher forum. The learned counsel for the respondent has urged that the decision requires reconsideration. Having regard to the facts and circumstances of the case, as well as the fact that the revenue has accepted the said decision, the court does not find any reason to refer the matter for consideration to a Larger Bench. 12. In the light of the decision of this court in the case of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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