Mr. Dharan v. Dr. Neela Gokhale, Jj

PURTI IN THE HIGH COURT OF JUDICATURE AT BOMBAYPRASADPARAB ORDINARY ORIGINAL CIVIL JURISDICTIONDigitally signed byPURTI PRASADPARABDate: 2024.02.0214:58:49 +0530WRIT PETITION NO. 3162 OF 2022 Praxis Interactive Services Private Limited ….Petitioner V/s.Deputy Commissioner of Income Tax 2(3)(1), Mumbai and Ors. …Respondents ---- Mr. Dharan V. Gandhi a/w Mr. Darshan M. Gajra for Petitioner.Mr. Suresh Kumar for Respondents. ---- CORAM : K.R. SHRIRAM & DR. NEELA GOKHALE, JJ. DATED : 30[th] JANUARY 2024 P.C. : 1.Petitioner is impugning a notice dated 24[th] March 2021 issuedunder Section 148 of the Income Tax Act, 1961 (the Act) for the AssessmentYear 2016-17 together with an order dated 13[th] January 2022 disposingpetitioner’s objections to reassessment. 2.One of the main grounds raised in the objections to reopening isthat even the figures given in the reasons to reopening are incorrect. It ispetitioner’s case that none of the submissions made in Paragraph No.2 of theobjections to the notice issued under Section 148 of the Act has been dealtwith in the order disposing the objections. Mr. Gandhi submits that evenassuming there is an escapement of income, still petitioner’s income havingbeen taxed under the provisions of Section 115JB of the Act, no further tax will be payable by petitioner. Mr. Gandhi in fairness stated that this groundhas not been raised in the objections to the notice for reopening. Mr.Gandhistates that in any event the Assessing Officer (A.O.) not having dealt withpetitioner’s submissions in Paragraph No.2 of the letter dated 9[th] November2021 objecting to the reopening, the order disposing objections passed on13[th] January 2022 impugned in the petition be quashed and set aside andthe matter be remanded for denovo consideration. Mr. Gandhi states that ifthe opportunity of personal hearing is given (it was not given on the earlieroccasion) petitioner will be able to explain to the satisfaction of the A.O.that there has been no escapement of income assessable to tax. 3.There is an affidavit in reply opposing the petition and in theaffidavit in reply respondent has basically reiterated what is stated in theorder disposing the objections. It is also for the first time mentioned in theaffidavit in reply that the reopening has been on the basis of auditobjections. Mr. Gandhi states that the reasons for reopening is verbatimreproduction of the audit objections and therefore as held by this court inThe Pr. Commissioner of Income Tax-5 vs. Shodiman Investments Pvt. Ltd.[1]itcannot be stated that the A.O. had reason to believe that there wasescapement of income. 4.In our view, all these points can be raised by petitioner in the 1 (2018) 93 taxmann.com 153 (Bom) further reply to be filed to the notice issued under Section 148 of the Act.Petitioner shall file the same within two weeks before the JurisdictionalAssessing Officer (JAO). The JAO shall consider the objections and aftergiving personal hearing to petitioner, notice whereof shall be communicatedatleast five working days in advance, proceed further in the matter. Theproceedings to be concluded by 30[th] April 2024. 5.Petition disposed. 6.All rights and contentions are kept open. 7. We have not expressed any opinion on the merits of the matter. (DR. NEELA GOKHALE, J.) (K.R. SHRIRAM, J.)