9911796707
TMI Blog2024 (10) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... rselves by taking into consideration the relevant documentary evidence pointed out by advocate for the petitioner that each and every query including the issue of service tax raised in the original assessment proceedings were satisfied and all the relevant materials and information were disclosed truly and fully. The authority has already gone into the aspect of issue of service tax at the time of assessment proceedings and passing the order u/s 143(3) of the Act. Thus, in our considered opinion, jurisdiction assumed by the AO u/s 147 of the Act is nothing but a change of opinion. It is trite law that assumption of jurisdiction u/s 147 of the Act is impermissible on the basis of mere change of opinion. - HONOURABLE MR. JUSTICE BHARGAV D. KARIA AND HONOURABLE MR. JUSTICE NIRAL R. MEHTA DARSHAN R PATEL(8486) for the Petitioner MR NIKUNT K RAVAL(5558) for the Respondent ORAL ORDER (PER : HONOURABLE MR. JUSTICE NIRAL R. MEHTA) 1. By this writ petition under Articles 226 and 227 of the Constitution of India, he petitioner has challenged notice dated 27th March, 2021 under Section 148 of the Income Tax Act, 1961 (for short the Act ) as well as order dated 11th December, 2021 by which t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disclosure while filing return or during the course of assessment proceedings. Thus, in absence of any fault on part of the petitioner, it is not permissible in eye of law to reopen the scrutiny assessment under Section 143(3) of the Act. Accordingly, learned advocate has requested this Court to allow the petition as prayed for. 5.2 Learned advocate Mr.Patel for the petitioner next submitted that the entire reopening is nothing but a mere change of opinion. To substantiate his contention, learned advocate has emphatically submitted that at the time of original scrutiny proceedings, specific queries were raised with regard to payment of service tax and the same was considered under Section 143(3) of the Act. Therefore, learned advocate submitted that reopening is not based on any fresh and tangible material and thereby the same is said to be mere change of opinion. He, therefore, requested to allow the petition as prayed for. 5.3 Learned advocate for the petitioner lastly submitted that the sanction under Section 151 as envisaged was granted by the authority in a mechanical manner, without application of mind and recording reasons, and thereby initiation of proceedings based on impr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 143(3) of the Act and assessee had submitted audited report, balance-sheet and P L Account, it cannot be said that the assessee had made true and full disclosure of facts. Thereby, upon firm opinion being received with regard to non-payment of service tax to the tune of Rs.64,01,024/-, the Assessing Officer was justified in reassessment by assuming jurisdiction under Section 147 of the Act. He, therefore, requested this Court to dismiss the petition. 6.4 Learned advocate for the Respondent lastly submitted that the sanction as envisaged under Section 151 was accorded by the competent authority after having satisfied itself by going through the materials produced on record by the Assessing Officer and therefore, the said sanction cannot, in any manner, said to be invalid and/or improper. Thus, learned advocate requested this Court to dismiss the petition. 7. In rejoinder, learned advocate for the petitioner Mr.Patel pointed out to this Court so as to establish that reopening is based on mere change of opinion by relying upon page Nos.44, 47, 59, 60, 61, 64 and 72, by which each and every queries that were raised at the time of assessment proceedings were answered by the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rusal and analysis of the information collected/material available on ITS details of AIR transaction and copy of balance sheet, profit and loss a/c and submission received are available in case records. The information received is processed and examined from the assessment records and material available on record with the department. 5. On perusal of the available records, it is seen that the assessee had assessee had not paid service tax amounting to Rs.64,01,024/- during the year and same was shown in Balance Sheet as Taxes and Duties payable. The assessee had opted VCES for service tax and was liable to pay service tax in excess to the amount already paid since September 2009 amounting to Rs.1,08,38,322/- and it had collected the amount of Rs.64,,01,024/- from his clients. As assessee had collected the amount of Rs.64,01,024/- and not paid the same before filling the return, it was required to be taxed and added to the total income of the assessee but by not doing so it resulted in under assessment of Rs.64,01,024. This has resulted into under-assessment of income of Rs.64,01,024/-. 6. On verification of Notes on account for 3CD/3CB assessee had not paid service tax amounting to ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
