POINT OF LAW:PRACTICE AND PROCEDURE - When the cases are not listed on a particular day more specifically on the day of expiry of an interim order, then the parties cannot be penalised or blamed for non-listing of the matter for hearing, nor parties should made to suffer for the practical difficulties being faced by Courts

JUDGMENT :

(Prayer: Petitions filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorari to call for the records in PAN: AAACM7640R dated 11.01.2013 and 24.10.2014 relating to Assessment Year 2007-08 on the file of the respondent and quash the same.)

W.P.No.3005 of 2013 is preferred challenging the proceedings dated 11.01.2013 issued by the Deputy Commissioner of Income Tax, Company Circle IV(1), Chennai regarding proposal to complete the assessment and calling for objections on initiation of proceedings under Section 147 of the Income Tax Act, 1961 (hereinafter referred to as “the IT Act”). Notice under Section 148 of the IT Act was issued on 20.04.2011. On receipt of the notice under Section 148 of the IT Act, issued for reopening of the assessment for the assessment year 2007-08, the petitioner sent reply to the notice requesting for the reasons for reopening. When the writ petition was taken up for hearing on 06.02.2013, it was admitted and an order of interim stay of all further proceedings was granted by this Court.

2. The learned counsel appearing on behalf of the petitioner made a submission that the petitioner-Club is incorporated in terms of Section 25 of the Indian Companies Act, 1956 and having its registered office at Chennai.

3. With reference to the disputes raised for reopening of assessment, it is contended that the very initiation per se untenable in view of the fact that the reasonings given were already considered by the Assessing Officer during the original assessment and the appellate authority, viz., the Commissioner of Income Tax (Appeals)-VI, Chennai (for brevity “the Commissioner”) also confirmed such findings made by the Assessing Officer in respect of the said assessment year 2007-08. Thus, there is no reason to believe for reopening of assessment, but the impugned reasons amount to change of opinion. Thus, the very initiation of proceedings is not in consonance with the requirements contemplated under Section 147 of the IT Act and the same is liable to be set aside.

4. In support of the contention, the learned counsel for the petitioner solicited the attention of this Court with reference to the computation of profits for the year ended 31.03.2007 (AY 2007-08 dated 29.10.2007) wherein, expenses on mutuality basis, income on mutuality basis and the Guindy Lodge & Club House receipts all such particulars were made available and the said particulars were considered by the Assessing Officer at the time of passing the assessment order dated 29.12.2009 under Section 143(3) of the IT Act. The said assessment order reveals that during the assessment year 2007-08, it is stated that the Club had received Rs.1,55,65,851/- as interest income from their Fixed Deposit.

5. The learned counsel for the petitioner relying on the said findings, made a submission that the very same amount has been taken as a ground for reopening of assessment and thus, the reopening is untenable. This apart, there was a consideration in respect of the said amount in the order of assessment more specifically in paragraph 1.7 where the Assessing Officer made a finding that the interest income of Rs.1,55,65,851/- is treated as income from other sources and taxed accordingly. Para 2.1 of the assessment order was also relied upon, which reads as hereunder:-

“2.1. In the computation, the assessee company had adjusted the income and expenses pertaining to Guindy lodge and club house. However, on verifying the P&L, it was found that the expenses in P&L in the computation differs. From the details filed it was found that the expenses claimed in the Guindy Lodge comes to Rs.4,20,25,342/- as against the amount of Rs.3,94,36,300/- and Rs.28,73,507/- as against Rs.25,56,190/- with respect of Club House. Hence the difference is also added back to the expenses respectively. When this was pointed out the AR has not submitted any reply. Since the assessee company had filed inaccurate particulars thereby concealing income