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TAXAP/1932/2010 2/ 2 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 1932 of
2010
=========================================================
COMMISSIONER
OF INCOME TAX-III - Appellant(s)
Versus
NARAYAN
ENTERPRISES - Opponent(s)
=========================================================
Appearance
:
MR
MANISH BHATT, SR COUNSEL
for
Appellant(s) : 1,
None for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
and
HONOURABLE
MS JUSTICE SONIA GOKANI
Date
: 14/11/2011
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE AKIL KURESHI)
Revenue
is in appeal against the judgement of the Tribunal dated 13.11.2009.
Following questions are presented for our consideration :
“Whether
the Appellate Tribunal is right in law and on facts in quashing the
assessment completed by the Assessing Officer u/s. 147 of the I.T.
Act holding that letter issued by the Assessing Officer and
addressed to the assessee is not the reason recorded by the
Assessing Officer?
Issue
pertains to reopening of assessment for the assessment year
1995-1996. Once the assessment was carried out on 4.2.1998 under
Section 143(3) of the Income Tax Act. However, subsequently the
Assessing officer issued notice under Section 148 of the Act on
8.3.1999 seeking to to reopening the assessment. The Assessing
Officer in the reopening of assessment proceedings passed an order
dated 17.11.2000 making addition of Rs.18 lakhs on account of value
of Goodwill created to partners account. Assessee carried the issue
in appeal. Assessee besides other issues contended that reassessment
itself was invalid. CIT(Appeals) allowed the assessee’s appeal.
Revenue carried the issue in appeal before the Tribunal. Tribunal by
impugned order rejected Revenue’s appeal. Hence the present tax
appeal.
Having
heard learned counsel for the Revenue and having perused the orders
on record, it clearly emerges that the Assessing Officer had
recorded no reason for reopening the assessment. CIT(Appeals) as
well as Tribunal both concurrently came to the conclusion that no
reasons were recorded. Despite sufficient opportunity being made
available, the Assessing Officer could not produce the reason
recorded before the Commissioner (Appeals) or the Tribunal. The
Assessing Officer only relied on notice under Section 148 of the Act
for reopening of the assessment. Surely, such notice itself would
not constitute reasons for reopening the assessment. It is well
settled that separate reasons were required to be recorded. In
absence of such reasons, Tribunal in our opinion rightly upheld
order of the CIT(Appeals) declaring the reopening of assessment
invalid.
In
the result, Tax Appeal is dismissed.
(Akil
Kureshi,J.)
(Ms.
Sonia Gokani,J.)
(raghu)
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