Reclamation Realty (India) Pvt.ltd v. Asst.commissioner Of Income Taxrange 10 (1) Mumbai & Anr

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTIONWRIT PETITION NO. 2283 OF 2007 Reclamation Realty (India) Pvt.Ltd ..Petitioner vs Asst.Commissioner of Income TaxRange 10 (1) Mumbai & anr .. Respondents Ms.A.Vissanji with Mr.S.J.Mehta for PetitionerMr.Vimal Gupta with Mr.P.S.Sahadevan forRespondents CORAM : F.I.REBELLO ANDR.S.MOHITE, JJDATED : 4TH DECEMBER, 2007 P.C. P.C. P.C. 1. An order of assessment has already been passedpursuant to the notice issued under section 148 ofthe Income Tax Act. The learned counsel contendsthat the said order was passed without consideringthe unreported judgment of this Court in WritPetition No.91 of 2007 in the case of Asian PaintsLtd vs Dy.Commissioner of Income Tax and ors andother petitions decided on 29th January 2007. Ourattention is invited to the following observations of this Court : " We also direct that the I.T.O. concernedshall follow the above procedure strictly inall such cases of reopening of assessment."It is contended that therefore this is the lawdeclared by this Court. To constitute the ratio decedendi of the judgment which a co-ordinate Bench must consider the following amongst other considerations must be satisfied: a) The matter must be in issue c) It must be answered by reasons The issue as to whether the provisions of theAct and rules require the adjudicating authoritygenerally to grant time was not in issue. Theissue arose from the peculiar facts of that case.That is how the ratio of that judgment must beunderstood.In the instant case, inspite of the objectionsraised by the petitioners, it is contended thatthough an adjournment was sought, the AssessingOfficer proceeded to pass the order.Once an order is passed it is open to thepetitioners herein to challenge the same byappropriate proceedings. It is not the case of thepetitioners that the grounds which are availablecannot be raised by the petitioners before theappellate authority.Considering the above, in our view, this is nota fit case for exercising our extraordinaryjurisdiction.Petition stands rejected.(F.I.Rebello, J)(R.S.Mohite, J)