I Infotech Ltd v. The Assistant Commissioner Ofincome Tax-10(3) And Another

1 IN THE HIGH COURT OF JUDICATURE AT BOMBAYO. O. C. J. WRIT PETITION NO.529 OF 2010 3i Infotech Ltd...Petitioner. Vs. The Assistant Commissioner ofIncome Tax-10(3) and another..Respondents. .... Mr. Percy Pardiwala, Senior Advocate with Mr. Atul K. Jasani for the Petitioner.Mr. Suresh Kumar for the Respondents. .... CORAM : DR. D.Y.CHANDRACHUD &J.P. DEVADHAR, JJ. P.C.: 10[th] March, 2010. 1.Rule, returnable forthwith. By consent of the learned counsel and at their request the matter is taken up for hearing and final disposal. 2.In the present case the challenge under Article 226 of the Constitution is to an order of reassessment which was passed on 30[th ] November, 2009 after reopening the assessment for Assessment Year 2002-03. The notice for reopening the assessment was issued on 18[th ] March, 2009. The assessee lodged its objections to the reopening of the assessment on 15[th] April, 2009. The Assessing Officer passed the impugned reassessment order on 30[th] November, 2009 without disposing of the objections. The grievance of the assessee is that the Assessing Officer has not complied with the directions of the Supreme Court in G.K.N. Drive Shaft (India) Ltd. v. Income Tax Officer[1]. 3.During the course of the hearing of these proceedings, counsel appearing on behalf of the Revenue has fairly stated that the directions contained in the judgment of the Supreme Court in G.K.N. Drive Shaft (supra) were not complied with. In our view, there is absolutely no reason or justification for the Assessing Officer not to deal with the objections filed by the assessee to the reopening of the assessment particularly in view of the binding principle of law laid down by the Supreme Court in that regard. In the circumstances, during the course of the hearing, we have suggested to the learned counsel that it would be appropriate for this Court to set aside the order of reassessment dated 30[th] November, 2009 and to remit the 1259 ITR 19 (SC). proceedings back to the Assessing Officer. Counsel appearing on behalf of the assessee has no objection thereto. 4.In the circumstances, the Petition shall stand disposed of in the following terms : i) The order of reassessment dated 30[th] November, 2009 is quashed and set aside;quashed and set aside; ii) The Assessing Officer shall pass an order on the objections raised by the assessee to the proposed reopening of assessment within a period of four weeks from today after furnishing an opportunity of being heard to the assessee and serve a copy of the said order upon the Petitioner;raised by the assessee to the proposed reopening of assessment within a period of four weeks from today after furnishing an opportunity of being heard to the assessee and serve a copy of the said order upon the Petitioner; iii) In the event that an order adverse to the assessee is passed, effect shall not be given to the order for a period of four weeks thereafter to enable the assessee to seek recourse to its remedies against the order; effect shall not be given to the order for a period of four weeks thereafter to enable the assessee to seek recourse to its remedies against the order; iv)If within the period specified in clause (iii) above, the order passed as per clause (ii) above is not stayed by a Court and passed as per clause (ii) above is not stayed by a Court and there is no order restraining the assessing officer from passing a reassessment order, the assessing officer would be at liberty to to pass an order of reassessment within a period of two weeks from the expiry of the period set out in clause (iii) above; v) In order to facilitate completion of the entire exercise set out herein above, for a period of ten weeks from today, the notice dated 18[th] March, 2009 shall remain stayed;dated 18[th] March, 2009 shall remain stayed; vi)All the rights and contentions of the parties are kept open and iv)If within the period specified in clause (iii) above, the order passed as per clause (ii) above is not stayed by a Court and passed as per clause (ii) above is not stayed by a Court and there is no order restraining the assessing officer from passing a reassessment order, the assessing officer would be at liberty to to pass an order of reassessment within a period of two weeks from the expiry of the period set out in clause (iii) above; v) In order to facilitate completion of the entire exercise set out herein above, for a period of ten weeks from today, the notice dated 18[th] March, 2009 shall remain stayed;dated 18[th] March, 2009 shall remain stayed; vi)All the rights and contentions of the parties are kept open and this order shall not be constructed as the expression of any opinion by the Court on the merits of the rival contentions.opinion by the Court on the merits of the rival contentions. The Petition is accordingly disposed of.There shall be no order as to costs. (Dr. D.Y.Chandrachud, J.) (J.P. Devadhar, J.)