Atomstroyexport, Mumbai v. The Dy. Director Of Income Tax & Ors

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.378 OF 2012 Atomstroyexport, Mumbai...Petitioner. Vs. The Dy. Director of Income Tax & ors...Respondents. Mr.S.E.Dastur, Sr.Counsel along with Mr. Nitesh Joshi and Mr. Atul K. Jasani i/by Mr.Atul K. Jasani for the Appellant.Mr.Tejveer Singh for the Respondents. CORAM : S.J. VAZIFDAR & M.S. SANKLECHA, JJ. DATE : 01[st] August, 2012. PC : This petition under Article 226 of the Constitution of India challenges the notice dated 28/3/2011 issued under Section148 of the Income Tax Act, 1961 seeking to reopen the assessment for the assessment year 2005-06 and the order dated 20/10/2011 passed by the Deputy Director of Income Tax dismissing the petitioner's objection to initiation of proceeding by notice dated 28/3/2011 under Section 148 of the Income Tax Act, 1961. 2)The Advocate for the petitioner and the respondent state that the issues raised in the present petition stands covered by the order passed today in Writ Petition No.377 of 2012 which seeks to reopen the assessment of the petitioner for the assessment year 2004-05. The only difference in the present case from that in Writ Petition No.377 of 2012 is that in this case there was no earlier notice under Section 148 seeking to reopen the assessment as in the facts of Writ Petition No.377 of 2012. However, in the present case at the time of passing the original assessment order itself the petitioner were asked by the Assessing Officer to supply the copies of the four offshore supply contracts entered into between Nuclear Power Corporation of India Limited and the petitioner, which was duly supplied. Further the petitioner were also asked during the assessment proceedings as to why according to the petitioner the consideration received in respect of offshore supply contract is not subject to tax in India. The petitioner had by its letter dated 27/12/2008 and 28/12/2008 furnished the necessary information and explanation.The assessment order for the assessment year 2005-06 was passed on 31/12/2007 under Section 143(3) of the Income Tax Act,1961. 3)Therefore, for the reasons mentioned in the order passed in Writ Petition No.377 of 2012, we set aside the notice dated 28/3/2011 issued under section 148 of the Income Tax Act, 1961 seeking to reopen assessment for the assessment year 2005-06 and the order dated 20/10/2011 rejecting the petitioner's objection to notice dated 28/3/2011 reopening the assessment for the assessment year 2005-06. 4)The petition is allowed. No order as to costs. (M.S.SANKLECHA, J.) (S.J. VAZIFDAR, J.)