M/S.mistry Lalji Narsi Development Corporation v. The Assistant Commissioner Of Income Tax – 16(1), Room

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2119 OF 2009ANDWRIT PETITION NO.2120 OF 2009 M/s.Mistry Lalji Narsi Development Corporation ....Petitioner. Versus The Assistant Commissioner of Income Tax – 16(1), Room No.203 & others ....Respondents. Mr.S.E. Dastoor, Senior Advocate with Mr.Niraj Sheth with Mr.Atul K. Jasani for the petitioner.Mr.K.R. Chaudhari for the respondents. CORAM : Dr.D.Y. Chandrachud & J.P. Devadhar, JJ. DATE : 19[th] January, 2010. P.C. : 1.These two petitions have been heard together with companion Writ Petition No.2097 of 2009, in which final judgment and order has been passed today. The reasons which have weighed with the Court in allowing the companion Petition are that firstly, the assessment was sought to be re-opened beyond a period of four years after the expiry of the relevant assessment year and there was no failure on the part of the assessee to disclose fully all the material facts; secondly, the assessee was granted an exemption for A.Y. 2002-03 and no distinction was sought to be made validly; thirdly, there was no basis whatsoever to form an opinion that the income had escaped assessment. It is common ground before the Court that the facts and circumstances relating to these petitions are the same as those in companion writ petition No.2097 of 2009, save and except that the notice under section 148 has been issued within a period of four years of the end of relevant assessment year. Hence, the first of the reasons which weighed in the decision of the companion Petition will not be attracted. 2.We have already noted in our judgment in the companion writ petition that the sole basis on which the assessment has been reopened is that the assessee failed to disclose the commencement certificates issued by the Municipal Corporation and that a copy of the commencement certificates had subsequently been made available by the Joint Commissioner of Income Tax to the Assessing Officer. We have already held on the basis of record and the statement made by the Counsel for the revenue that the commencement certificates were furnished by the assessee, to the Assessing Officer during the assessment proceedings under section 143(3) and that consequently the basis on which the assessment is sought to be reopened is unsustainable. Moreover, it is common ground before the Court that the petitioner has been allowed a deduction under Section 80-IB(10) for assessment year 2002-03 and assessment year 2003-04. 3. Consequently, for the reasons already indicated by this Court while allowing the companion writ petition, these petitions are allowed in terms of prayer clause (a). The Notices under Section 148 dated 24[th] March 2009 are quashed and set aside. In the circumstances of the case, there shall be no order as to costs.