JAYESH T KOTAK Vs. DEPUTY COMMISSIONER OF INCOME TAX
LAWS(GJH)-2020-3-204
HIGH COURT OF GUJARAT
Decided on March 26,2020

Jayesh T Kotak Appellant
VERSUS
DEPUTY COMMISSIONER OF INCOME TAX Respondents

JUDGEMENT

HARSHA DEVANI,J. - (1.) Rule. Mrs. Mauna Bhatt, learned Senior Standing Counsel waives service of notice of Rule on behalf of the respondent.
(2.) By this petition under article 226 of the Constitution of India, the petitioner has challenged the notice dated 27.03.2015 issued by the respondent under section 148 of the Income Tax Act, 1961 (hereinafter referred to as 'the Act') seeking to reopen the assessment of the petitioner for assessment year 2008-2009 as well as the orders at Annexure 'T' and 'V' to the petition whereby the respondent has rejected the objections raised by the petitioner to the reopening of assessment.
(3.) The facts as averred in the petition are that the petitioner is an individual and is assessed as such. For assessment year 2008-2009, the petitioner filed his return of income showing total income at Rs.1,48,89,810/- as per the statement of income annexed along with the return of income. The petitioner had also filed audit report in Form No.3CB and 3CD before the Assessing Officer. Thereafter, the petitioner received a noticed dated 16.09.2010 issued under section 142(1) of the Act, calling upon the petitioner to furnish certain details. The petitioner furnished such details through his Chartered Accountant by a reply dated 14.10.2010. A further notice dated 19.10.2010 came to be issued under section 142(1) of the Act calling for further information from the petitioner. A notice dated 19.10.2010 issued under section 143(2) of the Act was received by the petitioner, whereby the petitioner was called upon to attend the respondent's office. It is the case of the petitioner that he supplied details which were called for by the respondent by his letters dated 18.11.2010 and 26.11.2010. In response to the said notices, the petitioner filed his reply dated 02.12.2010 annexing in all 7 exhibits with the said reply. By a letter dated 27.12.2012, the petitioner furnished some further details which were called for by the respondents during the assessment proceedings under section 143(3) of the Act. After calling for extensive details by various notices and the petitioner replying to those notices, the respondent passed an assessment order dated 28.12.2010 under section 143(3) of the Act, wherein, six additions came to be made. The petitioner challenged the assessment order before the Commissioner of Income Tax (Appeals), who passed an order dated 26.09.2011. 3.1 Now, after a gap of more than four years, the petitioner has received a notice dated 27.03.2015 under section 148 of the Act, whereby, the respondent wants to reopen the assessment for the assessment year 2008-2009. 3.2 In response to the notice under section 148 of the Act, the petitioner gave his reply dated 16.04.2015 making certain legal submissions and requested the respondent to provide the reasons recorded for reopening the assessment. By a further letter dated 04.05.2015, the petitioner, once again, requested for a copy of the reasons recorded and also requested the respondent to take the original return filed by him under section 139 of the Act as the return filed in response to the notice under section 148 of the Act. By a letter dated 18.05.2015, the respondent furnished the reasons recorded. The respondent called upon the petitioner to file a copy of the return instead of relying on the previously filed return and so the petitioner filed the same return once again electronically and mentioned the said fact in a letter submitted to the Department on 04.06.2015. Thereafter, by a letter dated 13.07.2015, the petitioner submitted his objections. The petitioner filed further objections vide letter dated 27.07.2015 making certain points on merits as well as reiterating the fact that the petitioner had disclosed fully and truly all material facts for the purpose of assessment under section 143(3) of the Act. It is the case of the petitioner that he had filed all primary documents which were statutorily required to be filed along with the return of income and had also filed all documents that were called for during the course of scrutiny assessment. The petitioner pointed out that the Assessing Officer, while carrying out scrutiny assessment, had examined the issue of deemed dividend under section 2(22)(e) of the Act. 3.3 By an order dated 11.09.2015, the respondent disposed of the objections raised by the petitioner vide letter dated 13.07.2015. Furthermore, by a letter dated 11.09.2015, the respondent called upon the petitioner to explain as to why loans extended by M/s. J. P. Infrastructure Pvt. Ltd. (now known as J. P. Iscon Limited) to its sister concern amounting to Rs.12.61 crores should not be treated as deemed dividend under section 2(22)(e) of the Act as the petitioner was holding 27.49% of the shares in M/s. M/s. J. P. Iscon Ltd and called upon the petitioner to reply the query within the time specified thereunder. The petitioner responded by a letter dated 23.09.2015, bringing to the notice of the respondent that he had missed out in dealing with his objections dated 27.07.2015, wherein, this very issue was dealt with and reply to the query in the letter dated 11.09.2015 was already addressed in the petitioner's objections dated 27.07.2015. Thereafter, the respondent, by a letter dated 23.09.2015, disposed of the petitioner's objections dated 27.07.2015. Being aggrieved, the petitioner has filed the present petition. 3A. In response to the averments made in the petition, the respondent has filed an affidavit-in-reply; the petitioner has filed a rejoinder thereto and the respondent has filed a surrejoinder to the rejoinder filed by the petitioner. ;


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