SOPAN INFRASTRUCTURE PVT. LTD. Vs. INCOME TAX OFFICE

JUDGEMENT

(1.) By way of this petition under Art. 226 of the Constitution of India, the petitioner-assessee has prayed for issuance of writ or order, quashing and setting aside the impugned Notice dated 26th March 2012 issued under Sec. 148 of the Income-tax Act, 1961 [hereinafter referred to as, "the Act"] by which the Assessing Officer has sought to reopen the assessment for Assessment Year 2005-2006, which is beyond the period of four years from the relevant assessment year, alleging inter alia that the income chargeable to tax as escaped the assessment within the meaning of Sec. 147 of the Act on the part of the assessee not disclosing the true and correct facts.

(2.) The original assessment for AY 2005-2006 was a scrutiny assessment under Sec. 143 [3] of the Act which was framed and finalized as far back as on 13th Dec. 2007. Necessary particulars/queries were asked before framing the scrutiny assessment; including the flats sold by the assessee and the gross profit earned by the assessee, and thereafter only, the Assessing Officer framed the scrutiny assessment under Sec. 143 [3] of the Act.

(3.) Shri S.N. Divatia, learned advocate appearing on behalf of the petitioner-assessee has vehemently submitted that the impugned notice issued by the Assessing Officer to reopen the assessment for A.Y 2005-06 is bad in law and contrary to the provisions of Sec. 147; more particularly, proviso to Sec. 147 of the I.T Act. It is vehemently submitted by learned advocate Shri Divatia that as such there is not tenable material available with the Assessing Officer to come to the conclusion that the income chargeable to tax has escaped the assessment in A.Y 2005-2006. It is submitted that merely on the basis of some observations made by another Assessing Officer for A.Y 2007-2008 to the effect that the assessee had taken some on-money with respect to the flats sold in the said assessment year viz., AY 2007-2008, it is not open for the A.O to reopen the assessment for A.Y 2005-2006 on the assumption and presumption that even with respect to the flats sold in the year 2005-2006, the assessee must have taken on-money.