High Court Of Gujarat
Vodafone Essar Gujarat Ltd. vs. ACIT
Assessment Year : 2004-05
Section : 115JB, 147
K.A. Puj And Rajesh H. Shukla, JJ.
Special Civil Application No. 12670 Of 2009
February 8, 2010
K.A. Puj, J. – Rule. Mrs. Mauna M. Bhatt, learned standing counsel waives service of rule on behalf of the respondent. With the consent of the parties, the matter is taken up for final disposal today itself.
2. The petitioner has filed this petition under article 226 of the Constitution of India praying for quashing and setting aside the notice of reopening issued by the respondent on March 16, 2009, for assessment year 2004-05 on the ground that the income has escaped assessment within the meaning of section 148 of the Income-tax Act, 1961.
3. This court has issued notice on December 7, 2009. Pursuant to the notice, Mrs. Mauna M. Bhatt, learned standing counsel appeared and placed on record the affidavit-in-reply of the respondent.
4. Heard Mr. S. N. Soparkar, learned senior counsel appearing for the petitioner and Mr. M. R. Bhatt, learned senior counsel appearing for the respondent.
5. It is the case of the petitioner that the petitioner filed its original return of income on October 30, 2004, declaring therein total income at Rs. 4,51,49,320 under the normal provisions of the Act and Rs. 14,28,27,830 under the provisions of section 115JB of the Act. The case of the petitioner was selected for scrutiny assessment and assessment was framed on December 29, 2006, under section 143(3) of the Act determining the total income at Rs. 1015.74 lakhs and Rs. 9100.10 lakhs under section 115JB respectively. Being aggrieved by the said order, the petitioner filed an appeal before the Commissioner of Income-tax (Appeals) who, vide his order dated October 30, 2007, disposed of the said appeal. While disposing of the said appeal, the learned Commissioner of Income-tax (Appeals) decided the point at issue against the petitioner. The Assistant Commissioner of Income-tax passed an order on January 24, 2008, giving effect to the order passed by the Commissioner of Income-tax (Appeals) wherein he has observed that the unabsorbed loss/depreciation according to the books has already been exhausted in the assessment year 2003-04 only. There- fore, no unabsorbed loss/depreciation remains that can be reduced from the book profits for the computation under section 115JB for the assessment year 2004-05.
6. Being aggrieved by the order passed by the learned Commissioner of Income-tax (Appeals), the petitioner filed an appeal before the Tribunal and the Tribunal disposed of the said appeal on February 20, 2009. The notice for reopening of the year under consideration was issued on March 16, 2009. The petitioner applied for reasons recorded which were supplied to the petitioner. From the perusal of the reasons, it appears that the assessment was reopened on the ground that even though the provisions under section 79 were made applicable for the working out MAT (minimum alternate tax) under section 115JB, brought forward business loss and unabsorbed depreciation amounting to Rs. 1336.15 lakhs were adjusted to determine the book profit at Rs. 9100.10 lakhs, resulting in an underassessment of income of Rs. 1336.15 lakhs. The petitioner, vide his letter dated August 24, 2009, raised various objections, both on jurisdiction and merits and requested the respondent to drop the reassessment proceedings. The said objections were disposed of by the respondent, vide order dated November 16, 2009. The petitioner thereafter filed the present petition before this court challenging the notice of reopening.
7. While disposing of the objections, the learned Assistant Commissioner has observed that the decision of the Tribunal was received by the Department after issuance of the reopening notice. The fact still remains that the original order passed by the learned Assistant Commissioner was merged into the order of the Commissioner of Income-tax (Appeals). The Commissioner of Income-tax (Appeals) has considered this claim and order giving effect was passed wherein this very issue was considered. It is altogether a different thing that the order passed by the Commissioner of Income-tax (Appeals) was reversed by the Tribunal on this issue. However, if the Department had any grievance against the order of the Tribunal, the Department should have filed tax appeal before this court challenging the said order. It could not give any rise to the reopening of the assessment as there is no failure or omission on the part of the petitioner nor can it be said that there is change of opinion.
8. Since the learned Assistant Commissioner has no jurisdiction to reopen the assessment as the conditions precedent laid down under section 147 are not satisfied, we quash and set aside the notice under challenge and allow this petition. Rule is made absolute without any order as to costs.
[Citation : 344 ITR 447]