M/S. Sterlite Opportunities & Venturesltd v. Deputy Commissioner Of Income-Tax,Range 8(3), Mumbai & Ors

AJN IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTIONWRIT PETITION NO.395 OF 2009 M/s. Sterlite Opportunities & VenturesLtd. ... Petitioner Vs. Deputy Commissioner of Income-tax,Range 8(3), Mumbai & Ors. ... Respondents Mr. B.V. Jhaveri for the petitioner. Mr. Suresh Kumar for the respondents. CORAM : SMT. RANJANA DESAI & J.P. DEVADHAR, JJ. P.C.:- DATED : 3RD MARCH, 2009. 1.Rule. Rule made returnable forthwith. By consent of theparties, taken up for final hearing and disposal. 2.The petitioner is aggrieved by notice dated 28/3/2008 issuedby the Deputy Commissioner of Income-tax (for short, “the DCIT”)under section 148 of the Income Tax Act, 1961, reopening theassessment of the petitioner for the Assessment Year 2003-04. Itappears that on 11/4/2008, the petitioner wrote to the DCITrequesting him to give a copy of the reasons recorded for reopening the assessment. The reasons dated 28/3/2008 werefurnished to the petitioner. The petitioner filed its objectionsagainst reopening of the assessment on 29/12/2008. Theobjections were disposed of by the assessing officer by order dated23/1/2009. The petitioner has filed this petition challenging thesaid order also. Recorded reasons dated 28/3/2008 are alsochallenged. 3.We have heard learned counsel appearing for the petitionerat some length. He submitted that according to the DCIT, thereason for reopening of the assessment is that the petitioner hasmade investment in Hindustan Zink Limited to have controllingstake in it. According to the petitioner, it holds 46% of shareholdingin Hindustan Zink Limited. In the objections, the petitioner hasstated that the DCIT has not recorded any finding of fact as to howthe purchase of shares of Hindustan Zink Limited can be said tohave been made for holding controlling stake and not for businesspurposes. Without prejudice to this contention, the petitioner hasalso stated that 46% shareholding cannot be said to be controllingstake. A reading of the impugned order dated 23/1/2009 showsthat the DCIT has not considered this objection raised by the petitioner. The order must reflect the consideration of objections. We are, therefore, of the opinion that the order dated 23/1/2009needs to be set aside and the matter should be remanded to theDCIT for considering the objections of the petitioner de novo inaccordance with law and on merits. Hence, the following order : 4.The impugned order dated 23/1/2009 is set aside. Thematter is remanded to the DCIT for considering the objections ofthe petitioner afresh independently and in accordance with law.We direct the DCIT to decide the matter within a period of fourweeks from the date of receipt of this order by him. If the order isadverse to the petitioner, it shall not be implemented for a period offour weeks from the date of communication of the same to thepetitioner. In the meantime, reassessment proceedings pursuantto notice dated 28/3/2008 shall stand stayed. The petition isdisposed of. ` [SMT. RANJANA DESAI, J.] [J.P. DEVADHAR, J.]