Assistant Commissioner Of Income Tax, Circle-I, Jodhpur v. Marudhar Hotels Private Limited, Umaid Bhawan Palace, Jodhpur.through Shri Gaj Singh Director Of Marudhar Hotels Privatelimited

HIGH COURT OF JUDICATURE FOR RAJASTHAN ATJODHPUR D.B. Spl. Appl. Writ No. 176/2019 Assistant Commissioner Of Income Tax, Circle-I, Jodhpur. ----Appellant Versus Marudhar Hotels Private Limited, Umaid Bhawan Palace, Jodhpur.Through Shri Gaj Singh Director Of Marudhar Hotels PrivateLimited, R/o Umaid Bhawan Palace, Jodhpur. ----Respondent For Appellant(s) : Mr.K.K.BissaFor Respondent(s): ------------ HON'BLE THE CHIEF JUSTICE S. RAVINDRA BHAT HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI 01/07/2019 Order 1.The Revenue is aggrieved by the order made by the learnedSingle Judge quashing the re-assessment notice issued underSection 147/148 of the Income Tax Act,1961 dated 28.03.2012.The re-assessment notice was in respect of A.Y.-2005-06, 2006-07and 2007-08. Essentially, it was premised upon two grounds i.e.dis-allowance under Section 36(1)(iii) and secondly, thecommission allowance claimed, in respect of which deductionswere not made in accordance with the Section 194H by theassessee, attracting Section 40(a) (ia). The assessee hadsuccessfully challenged the impugned reassessment noticecontending that so far as the first aspect i.e. interest allowancewas concerned, the matter was debatable because the issue wascarried in appeal to the ITAT which granted relief. That theRevenue preferred to challenge that order in appeal to this Court could not ipso facto be a ground for re-opening the assessment forconcerned years. 2.As far as the second issue i.e. non-deduction under Section194H was concerned (in respect of amount of 40,34,980/-), the₹assessee successfully contend that the income tax amounts werepaid in accordance with the provisions at the time of filing of thefinal return, well in time. 3.The revenue relies upon the judgment in Commissioner ofIncome Tax & Ors. Vs. Chhabil Agarwal, (2013) 357 I.T.R. 357(SC) to say that the assessee could not have availed extraordinaryremedy of the writ petition in the circumstances. It also reliesupon Deputy Commissioner of Income-tax, Central Circle-I,Jodhpur Vs. Sambhav Energy Ltd., [2017] 80 taxmann.comm 389(Rajasthan) on the same effect besides relied upon the decision inRaymond Woollen Mills Ltd. Vs. Income-Tax Officer, (1999) 236CTR 34. 4.A reading of the impugned order would show that theoriginal assessment order was framed under Section 143 (3) i.e.after scrutiny of all the claim by the assessee. It is thus apparentthat the declarations and claims made, received carefulconsideration by the A.O.. In terms of Calcutta Discount Ltd. Co.Vs. I.T.O., (1961) 41 ITR 191 (SC) the job of the A.O. essentiallyis to consider the claims in accordance with law and not inaccordance with what an assessee states. Likewise, that anassessee might not claim a benefit would not deny it that relief,conversely, since the A.O is bound to administer the law in itscorrect interpretation. The impugned judgment took into accountthe binding decision of the Supreme Court in Commissioner ofIncome – Tax, Delhi Vs. Kelvinator of India Ltd., (2010) 187 Taxman 312 (SC) where the Court after reviewing the entire law,including the decision in Raymond Woollen held that for a valid re-opening of an assessment completed under Section 143 (3), therevenue must be in possession of tangible material outside of therecord. In other words, a second opinion or a review on theexisting material is impermissible. 5.Having considered the conspectus of the case, this Court isof the opinion that the learned Single Judge was justified ingranting the relief to the assessee on both aspects, there was noallegation of suppression or mis-declaration by the assessee. TheA.O. in the original assessment took into account all claims. Themere fact that he overlooked some provisions itself-in the absenceof tangible material could have afforded opportunity of re-assessment to the revenue. 5.Having considered the conspectus of the case, this Court isof the opinion that the learned Single Judge was justified ingranting the relief to the assessee on both aspects, there was noallegation of suppression or mis-declaration by the assessee. TheA.O. in the original assessment took into account all claims. Themere fact that he overlooked some provisions itself-in the absenceof tangible material could have afforded opportunity of re-assessment to the revenue. 6.There is no merit in the appeal, which is accordinglydismissed. (PUSHPENDRA SINGH BHATI),J (S. RAVINDRA BHAT),CJ 3-Kshama Dixit/-