Pentamedia Graphics Limited v. The Assistant Commissioner Of Income Tax,Non Corporate Circle 10 (1),Room

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 04.01.2022 CORAM THE HONOURABLE MR.JUSTICE C.SARAVANAN W.P.NO.28305 OF 2021AND W.M.P.NOS.29890 & 29892 OF 2021 (THROUGH VIDEO CONFERENCING) Pentamedia Graphics Limited,Represented by its Director,Mr.T.S.Srinivasan,S/o Late T.K.Seshadri,T2, III Floor, Nutech Plaza,73, Arcot Road, Kodambakkam,Chennai - 600 024. ... Petitioner Vs The Assistant Commissioner of Income Tax,Non Corporate Circle 10 (1),Room No.620, Sixth Floor, Wanaparthy Block,No.121, Mahatma Gandhi Road,Chennai - 600 034.... Respondent Prayer: Petition filed under Article 226 of the Constitution ofIndia to issue a Writ of Certiorari calling for the records inDIN & Letter No:ITBA/COM/F/17/2021-2022/1036663655(1) dated29.10.2021 on the file of the Respondent relating to theAssessment Year 2004-2005 and quash the same. For Petitioner : Mr.G.BaskarFor Respondent: Mrs.Hema Muralikrishnan Senior Standing Counsel The petitioner has challenged the impugned communicationdated29.10.2021bearingreferenceDIN&LetterNo.ITBA/COM/F/17/2021-2022/1036663655(1) for the Assessment Year2004-2005, over ruling the objection of the petitioner againstthe reopening of the assessment. 2. This is the second round of litigation in this Court. Asfar as the Assessment Year 2004-2005 is conferred, earlier anAssessment Order came to be passed in contravention of thedirection of the Hon'ble Supreme Court in G.K.N.Driveshafts(India) Ltd. Vs. Income Tax Officer and Others, (2003) 259 ITR19 (SC) and therefore the Re-assessment Order dated28.12.2011 was challenged by way of writ petition in W.P.No.2520of 2012. 3. After hearing the petitioner, the learned Single Judge ofthis Court was pleased to allow this writ petition by an orderdated 30.07.2021 by directing the respondent to pass a speakingorder pursuant to which, the impugned order has been passed. 4. It is the specific case of the petitioner that similarproceedings for reopening the assessment for the subsequentAssessment Years namely 2005-2006 and 2006-2007 also have beeninitiated which are the subject matter of W.P.Nos.34985 and34986 of 2012. 5. The learned counsel for the petitioner submits that asfar as the Assessment Year 2004-2005 is concerned, earlier anAssessment Order came to be passed for reopening the assessmenton 22.11.2006 wherein, the respondent had disallowed theexpenses incurred by the petitioner towards web casting chargesfor a sum of Rs.4,00,00,000/- and restricted the expenditureonly for a sum of Rs.4,48,04,840/-. 6. The learned counsel for the petitioner further submitsthat further an appeal has been filed before the AppellateCommissioner, the disallowance of expenditure towards webcasting charges for the balance sum of Rs.2,00,00,000/- wasallowed by CIT (Appeals) by an order dated 11.01.2008 in ITANo.655/2006-2007 pursuant to which, a revised assessment wasissued by the respondent on 12.09.2008 after giving effect tothe aforesaid order. The respondent issued a notice underSection 148 of the Income Tax Act, 1961 on 21.03.2011 which hasculminated in the impugned proceeding which was challengedbefore this Court. 7. The learned counsel for the petitioner further submitsthat the reasons given for reopening of the assessment asfollows:- "The assessee has not deducted the TDS u/s 195 on theamount paid to foreign companies towards the multi mediacharges" 8. The learned counsel for the petitioner submitted that thepetitioner has given adequate reasons as to why the assessmentcannot be reopened particularly in the light of the fact thatearlier order came to be passed on 08.12.2006. 9. The learned counsel for the petitioner further submitsthat the reopening of the assessment is contrary to law andsettled by the Hon'ble Supreme Court and arises on account ofchange of opinion is impermissible. 7. The learned counsel for the petitioner further submitsthat the reasons given for reopening of the assessment asfollows:- "The assessee has not deducted the TDS u/s 195 on theamount paid to foreign companies towards the multi mediacharges" 8. The learned counsel for the petitioner submitted that thepetitioner has given adequate reasons as to why the assessmentcannot be reopened particularly in the light of the fact thatearlier order came to be passed on 08.12.2006. 9. The learned counsel for the petitioner further submitsthat the reopening of the assessment is contrary to law andsettled by the Hon'ble Supreme Court and arises on account ofchange of opinion is impermissible. 10. The learned counsel for the petitioner further submitsthat there is no suppression on the part of the petitioner tojustify reopening of the assessment under Section 148 for thepurpose of Sections 143 and 147 of the Income Tax Act, 1961. 11. I have considered the arguments advanced by the learnedcounsel for the petitioner and the learned Senior StandingCounsel for the respondent. 12. It is the case where a notice for reopening ofassessment was issued on 19.10.2011. The petitioner has repliedto the same which culminated in Assessment Order dated28.12.2011. The said order was passed in contravention of thedirections of the Hon'ble Supreme Court inasmuch as no speakingorder was passed in terms of the decision of the Hon'ble SupremeCourt in G.K.N.Driveshafts case (referred to supra). It wastherefore set aside and the case was remitted back to pass aspeaking order. 13. The respondent has now passed the impugnedorder/communication over ruling the objection of the petitioner.By the impugned order, the respondent has merely concluded thereasons why the assessment has been reopened. The fact that theassessment has been reopened itself does not mean that the re-assessment has been completed. 14. It is open for the petitioner to participate in theproceedings and make appropriate submissions before therespondent by convincing the respondent to the effect that thereis no case made out for revising the assessment completedearlier. 15. If an adverse order is passed by the respondent, thepetitioner always has an alternate remedy before theCommissioner of Income Tax (Appeals) as was exercised by thepetitioner in the earlier round.16. Therefore, I do not find any merits in this writpetition. This writ petition is dismissed with the aboveobservations. No costs. Consequently, connected WritMiscellaneous Petitions are closed. Sd/-Assistant Registrar //True Copy// arb/rgm To1The Assistant Commissioner of Income Tax,Non Corporate Circle 10 (1),Room No.620, Sixth Floor, Wanaparthy Block,No.121, Mahatma Gandhi Road,Chennai - 600 034.2The Commissioner of Income Tax (Appeals)Chennai. +1cc to Mr.G.Baskar, Advocate, S.R.No.444+1cc to M/s.Hema Muralikrishnan, Advocate, S.R.No.475 and W.M.P.Nos.29890 & 29892 of 2021 SRA(CO)PM/27/01/2022 https://hcservices.ecourts.gov.in/hcservices/