Mr.dharan v. N.r.borkar, Jj

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.930 OF 2022 Verna Trading Private Limited….Petitioner. Income Tax officer Ward 4(3)(1) & Ors. ...Respondents. --------- Mr.Dharan V. Gandhi for petitioner.Mr. Suresh Kumar a/w Ms Sumandevbi Yada for respondents. --------- CORAM : K.R. SHRIRAM & N.R.BORKAR, JJ. DATE : 29[th] APRIL, 2022. P.C.: 1.In the reasons recorded, copy whereof is annexed to Exhibit J to thepetition, it is recorded that, “In this case return of income was filed for yearunder consideration but no scrutiny assessment under Section 143(3) ofthe Act was made.” In the affidavit in reply filed through one S.D.Suryavanshi who has recorded the reasons, affirmed on 13.4.2022, thesaid Suryavanshi admits that what is stated in the reasons recorded iserroneous but has tried to explain that the error occurred due to substantialwork pressure. What is significant is approval granted under Section 151 Chitra Sonawane of the Act is based on erroneous statement recorded in the reasons. Thatalso indicates that approving authorities have not checked the file beforeaccording approval. In our view, if the approving authorities had onlyconsidered the file, they would have come to know that there was scrutinyassessment that has been made for petitioner. 2.In our view, Additional Commissioner of Income Tax and PrincipalCommissioner of Income of Tax have mechanically accorded thepermission. The important safeguards provided in section 147 and 151were lightly treated by the Officers. They appear to have taken the dutyimposed on them under these provisions as of little importance. We findsupport for this view inChhugamal Rajpal V/s. S.P. Chaliha & Ors.,[1] . 3.This Court in German Remedies Limited V/s. Deputy Commissionerof Income Tax2 has held that while granting approval it was obligatory onthe part of the Commissioner to verify whether there was any failure on thepart of the assessee to disclose full and true relevant facts in the return ofincome filed for the assessment of income of that assessment year. It wasalso obligatory on the part of the Commissioner to consider whether or notpower to reopen is being invoked properly. In our view, the approval 11971(79)ITR 603 SC2(2006)287 ITR 494 (Bom)2(2006)287 ITR 494 (Bom) Chitra Sonawane granted suffers from non application of mind. 4.In the circumstances, notice dated 31.3.2021 issued under Section148 of the Act is quashed and set aside. Petition allowed in terms of prayerclause (a) which reads as under : “(a) that this Hon’ble Court may be pleased to issuea Writ of Certiorari or a Writ in the nature ofCertiorari or any other appropriate Writ, Order ordirection , calling for the records of the Petitioner’scase and after going into the legality and proprietythereof, to quash and set aside the notice underSection 148 of the Act dated 31.03.2021 (“ExhibitG”) and the order dated 23.7.2021 (“Exhibit M”).” a Writ of Certiorari or a Writ in the nature ofCertiorari or any other appropriate Writ, Order ordirection , calling for the records of the Petitioner’scase and after going into the legality and proprietythereof, to quash and set aside the notice underSection 148 of the Act dated 31.03.2021 (“ExhibitG”) and the order dated 23.7.2021 (“Exhibit M”).” 5.Petition disposed. (N.R. BORKAR, J.) (K.R.SHRIRAM, J.) Chitra Sonawane Chitra Sonawane