Vishwanath Engineers v. Asstt. CIT

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The Tax Publishers2013 TaxPub(DT) 1611 (Guj-HC) : (2013) 354 ITR 0211 Income Tax Act, 1961 --*Writ* --Alternative remedy Reassessment notice--Assessee raised some objections regarding reopening of the assessment previously framed for scrutiny Instead of disposing of the objections separately, assessing officer proceeded to frame the assessment ignoring the objections of assessee. It was only in the final order of the assessment assessing officer he touched on the various objections raised by the assessee filed writ petition on the ground that assessing officer has no jurisdiction to reopen the assessment assessing officer contended that the assessment order having already been passed, assessee be relegated to appellate remedy, assessing officer submitted that all non-tensions including with respect to the validity of the notice for reopening could be examined by the appellate authority. Held: Mere finalisation of the assessment did not take away the High Court's jurisdiction under article 226 of the Constitution to examine the very validity of the reopening. Secondly, assessing officer having ignored the Supreme Court's directives of disposing of the objections before finalising the assessment at least could not hope to capitalize on his own wrong that assessee now must go in appeal because rightly or wrongly, he having framed the assessment, the only remedy available to the assessee would be to file an appeal. This would amount to allowing assessing officer to take advantage of his own wrong. Income Tax Act, 1961 Section 147 Income Tax Act, 1961 Section 148 Constitution of India, 1950 Article 226 Income Tax Act, 1961 --*Reassessment--Change of opinion Assessment completed under section 143(3)--assessing officer framed assessment under section 143(3) in which no disallowance of maintenance expenditure was made, subsequently assessing officer issued the impugned notice under section 148 on the ground that maintenance expenditure was not a business expenditure and, therefore, could not have been allowed. Assessee contended that the entire aspect of the maintenance expenditure was examined by assessing officer in the original assessment. Therefore, any reopening even within a period of four years from the end of the relevant assessment year, would not be permissible. Held:Since assessing officer having previously examined the nature of expenditure and having accepted the same during the original assessment, it was not open for assessing officer to re-examine such question. Any such attempt on the part of assessing officer would be based only on a change of opinion. Reopening even within four years would not be permissible. Income Tax Act,* 1961 Section 147 Income Tax Act, 1961 Section 148 Constitution of India, 1950 Article 226 In the Gujarat High Court Akil Kureshi & Harsha Devani J.J. Vishwanath Engineers v. Asstt. CIT Special Civil Application No. 204 of 2012 8 October, 2012 Petitioner by : Manish J. Shah Respondent by : Paurami B. Sheth JUDGMENT SUBSCRIBE FOR FULL CONTENT

The Tax Publishers2013 TaxPub(DT) 1611 (Guj-HC) : (2013) 354 ITR 0211

Income Tax Act, 1961

--Writ --Alternative remedy Reassessment notice--Assessee raised some objections regarding reopening of the assessment previously framed for scrutiny Instead of disposing of the objections separately, assessing officer proceeded to frame the assessment ignoring the objections of assessee. It was only in the final order of the assessment assessing officer he touched on the various objections raised by the assessee filed writ petition on the ground that assessing officer has no jurisdiction to reopen the assessment assessing officer contended that the assessment order having already been passed, assessee be relegated to appellate remedy, assessing officer submitted that all non-tensions including with respect to the validity of the notice for reopening could be examined by the appellate authority. Held: Mere finalisation of the assessment did not take away the High Court's jurisdiction under article 226 of the Constitution to examine the very validity of the reopening. Secondly, assessing officer having ignored the Supreme Court's directives of disposing of the objections before finalising the assessment at least could not hope to capitalize on his own wrong that assessee now must go in appeal because rightly or wrongly, he having framed the assessment, the only remedy available to the assessee would be to file an appeal. This would amount to allowing assessing officer to take advantage of his own wrong.

Income Tax Act, 1961 Section 147

Income Tax Act, 1961 Section 148

Constitution of India, 1950 Article 226

Income Tax Act, 1961

--Reassessment--Change of opinion Assessment completed under section 143(3)--assessing officer framed assessment under section 143(3) in which no disallowance of maintenance expenditure was made, subsequently assessing officer issued the impugned notice under section 148 on the ground that maintenance expenditure was not a business expenditure and, therefore, could not have been allowed. Assessee contended that the entire aspect of the maintenance expenditure was examined by assessing officer in the original assessment. Therefore, any reopening even within a period of four years from the end of the relevant assessment year, would not be permissible. Held:Since assessing officer having previously examined the nature of expenditure and having accepted the same during the original assessment, it was not open for assessing officer to re-examine such question. Any such attempt on the part of assessing officer would be based only on a change of opinion. Reopening even within four years would not be permissible.

Income Tax Act, 1961 Section 147

Income Tax Act, 1961 Section 148

Constitution of India, 1950 Article 226

In the Gujarat High Court

Akil Kureshi & Harsha Devani J.J.

Vishwanath Engineers v. Asstt. CIT

Special Civil Application No. 204 of 2012

8 October, 2012

Petitioner by : Manish J. Shah

Respondent by : Paurami B. Sheth

JUDGMENT