The Assistant Commissioner Of Income Tax Central Circle 7(3) & Ors v. Dated : 30Th November 2021

Digitallysigned byMEERA1/3MEERAMAHESHMAHESHJADHAVJADHAVDate:2021.12.0213:00:15 IN THE HIGH COURT OF JUDICATURE AT BOMBAY+0530ORDINARY ORIGINAL CIVIL JURISDICTIONWRIT PETITION NO.3399 OF 2019 Valji Manji Gothi V/s. ….Petitioner The Assistant Commissioner of Income Tax Central Circle 7(3) & Ors. …Respondents ---- Mr. Dharan Gandhi for PetitionerMr. Shal V. Walve and Mr. Pritesh Chatterjee for Respondents -Revenue ---- CORAM : K.R. SHRIRAM &AMIT B. BORKAR, JJ DATED : 30th NOVEMBER 2021 P.C. : 1Mr. Gandhi tenders affidavit in rejoinder of petitioner affirmed on 22[nd]November 2021. The same is taken on record. Mr. Walve states that he hasreceived a copy thereof. 2 Petitioner is impugning a notice dated 28[th] March 2019 issued under Section 148 of the Income Tax Act, 1961 (the said Act) for Assessment Year2012-2013 whereby Revenue has informed petitioner that it has reasons to believe that petitioner’s income chargeable to tax for Assessment year 2012-2013 has escaped assessment within the meaning of Section 147 of the saidAct. 3Petitioner filed objections and subsequently, an order dated14[th] November 2019 rejecting the objections have been passed and thisorder also has been impugned in this petition. 4Respondent has sought to reopen petitioner’s assessment after expiryof more than four years from the relevant assessment year and therefore,the proviso to Section 147 of the Act shall apply. Respondent has to makeout a case while reopening, in the reasons for reopening, that petitioner hadfailed to fully and truly disclose material facts. We have considered thereasons annexed to the petition and we are satisfied that it is nothing but achange of opinion which is not permissible in law. 5The entire basis of reopening is based on a search action that wascarried out under Section 132 of the said Act on 9[th] October 2014 at theKamdhenu Group offices, their associates and residences of their Directors.Petitioner is one of the Director. Mr. Walve strongly opposed the petitionsaying that it is open to petitioner to take all steps available in law whilerespondent will be passing the assessment order after rejection ofobjections. 6Having heard both the counsels, in our view, the matter goes to theroot in as much as the exercise of jurisdiction by respondent is per se illegal.We say this because there is no tangible material which has been placed inthe reasons for reopening the assessment. The basis is the search actioncarried out on 9[th] October 2014. Even the original assessment order dated19[th] December 2016 in paragraph 2 provides for same search action andbased on the search action various amounts were added. 7Moreover, in the reasons for re-opening, there is not even an attemptmade to mention what material facts have not been disclosed. Re-opening is based on the records which petitioner had filed and as a result of the searchaction of the investigation wings of the Income Tax Department. As notedearlier, the search action was on 9th October 2014 which is before theearlier assessment order was passed and even in the earlier assessmentorder there is a reference to the search action carried out. We have to notethat the earlier assessment order itself was in pursuance to the search actioncarried out under Section 132 of the Act. Therefore, there is no tangiblematerial which has been mentioned in the reasons that has come to lightafter the last assessment order was passed. 8In the circumstances, petition is allowed in terms of prayer clause – (a) which reads as under : (a) that this Hon’ble Court may be pleased to issue a Writ ofCertiorari or a Writ in the nature of Certiorari or any otherappropriate Writ, Order or direction, calling for the recordsof the petitioner’s case and after going into the legality andproperty thereof, to quash and set aside the said notice dated28[th] March 2019 (Exhibit “D”) and the subsequent orderdated 14[th] November 2019 (Exhibit “I”). 9Petition disposed. (AMIT B. BORKAR, J) (K.R. SHRIRAM, J.)