Deepa Restaurant & Bar Private Ltd v. Dy Commissioner Of Income Tax & Ors

9619.9379RNG 1 884.885.and 887wp IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTIONWRIT PETITION NO.884 OF 2005 Deepa Restaurant & Bar Private Ltd .... Petitioner Vs. Dy Commissioner of Income Tax & ors .. Respondents with WRIT PETITION NO.885 OF 2005 Deepa Restaurant & Bar Pvt.Ltd .. Petitioner vsDy.Commissioner of Income Tax & ors .. Respondents with WRIT PETITION NO.887 OF 2005 Deepa Restaurant & Bar Pvt.Ltd .. Petitioner vs Dy.Commissioner of Income Tax & ors .. Respondents MrMihir Naniwadekar for PetitionersMr.Arvind Pinto for Respondents CORAM : M.S.SANKLECHA & G.S.KULKARNI, J DATE : 5.8.2014 PC. In these three petitions, the petitioners have challenged two notices dated 19.11.2003 seeking to re-open the assessment for A.Y.2000-01 and 2001-02 and one notice dated 20.11.2003 seeking to re-open assessment for A.Y.2002-03. The impugned notices are issued under section 148 of the Income Tax Act. 9619.9379RNG 2 2. On 19.4.2005 this Court admitted all the above three writ petitions and granted stay of recovery. However, the petitioners were given liberty to file an appeal against the assessment orders for A.Y. 2000-01, 2001-02 and 2002-03 passed consequent to the impugned notices with the Commissioner of Income Tax (Appeals). 3. Mr.Naniwadekar learned counsel appearing for petitioners submits that the issue on merits of the order is covered by the decision of this Court in the petitioner's own case in Income Tax Appeal No.48 of 2013 and Income Tax Appeal No.(L) 1513 of 2011 by an order dated 20.2.2013 in respect of A.Y..2004-05 and 2005-06. So far as re-opening is concerned, according to Mr.Nanivadekar the issue is covered in the petitioner's own case by an order of the Tribunal dated 5.2.2014 in respect of A.Y.2003-04. 4. However, as the petitioners have already filed an appeal before the Commissioner of Income (Appeals) and the same is awaiting disposal, Mr.Naniwadekar on instructions seeks liberty to withdraw the three petitions. Mr.Naniwadekar further submits that among other submissions which the petitioners would make before the Commissioner of Income Tax (Appeals) the aforesaid two decisions should also be considered by the Commissioner of Income Tax (Appeals) while passing the order in appeal. We have not examined the above decisions of Mr.Nanivadekar in depth and its applicability to the present petitions. However,we are certain that if the decisions are cited the Appellate Authority would examine its applicability and extend its benefits if applicable. All contentions on the merits of the matter are left open. 5. However, the stay granted by this Court in its order dated 19.4.2005 will continue to operate for a period of four weeks from the date the Commissioner of Income Tax (Appeals) communicates his decision in respect of the three appeals before him relating to A.Y.2000-01, 2001-02 and 2002-03. 6. With the above directions the petitions are disposed of with no order as to costs. (G.S.KULKARNI, J) (M.S.SANKLECHA, J)