Wp/1157/2015 Of Solvay Specialities India Pvt. Ltd v. The Deputy Commissioner Of Income Tax, Circle-8(2)(2) And 2 Ors

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTIONWRIT PETITION NO.1157 OF 2015 Solvay Specialties India Pvt Ltd. V/s.The Deputy Commissioner of IncomeTax, Circle 7(2) Mumbai & Ors. ….Petitioner .…Respondents ---- Mr. Madhur Agarwal a/w Mr. Upendra Lokegaonkar i/b Mint & Confreres for PetitionerMr. Suresh Kumar for Respondents ---- CORAM : K.R. SHRIRAM &N.R. BORKAR, JJ DATED : 8[th] APRIL 2022 P.C. : 1Petitioner is impugning a notice dated 24[th] March 2014 issued underSection 148 of the Income Tax Act 1961 (the said Act). The reasonsrecorded for reopening the assessment for A.Y.-2009-2010 in this case areidentical to the reasons as recorded in Writ Petition No.765 of 2015 forA.Y.-2007-2008 and Writ Petition No.710 of 2015 for A.Y.-2008-2009. Thereasons record that the assessee company had written of assets worthRs.1.81 crores in A.Y.-2010-2011 and claimed depreciation for those assetsduring the previous years and as those assets were not found on physicalverification during A.Y. 2010-2011, it would indicate that these assets werenot existing in even A.Y. 2009-2010. Therefore, the assessee could not haveclaimed depreciation and that has resulted in incorrect assessment beingmade for A.Y. 2009-2010. 2We cannot accept these reasons just because the assets were not foundon physical verification during A.Y. 2010-2011 and only in A.Y. 2010-2011the assessee has written off those assets would not mean that the assetswere not in existence in the previous year, i.e., 2009-2010. That is purelyspeculative and certainly cannot be a tangible material to form an opinionthat there has been escapement of income. 3Moreover, in A.Y. 2010-2011, the Assessing Officer while adding theamount of Rs.1.80 crores to petitioner’s income, has not disturbed thedepreciation on the block of assets which included Rs.1.80 crores. In factthis has been recorded in the common order dated 17[th] December 2014passed in Writ Petition Nos.765 of 2015 and 710 of 2015. 4In the circumstances, it is a fit case for us to interfere. Petition is allowed in terms of prayer clause (a) which reads as under: “(a)That this Hon’ble Court be pleased to issue a writ ofcertiorari or any other writ order or direction under Article 226 of theConstitution of India calling for the records of the case leading to theissue of the impugned notice and passing of the impugned order andafter going through the same and examining the question of legalitythereof quash, cancel and set aside the impugned notice (Exhibit E)and impugned order (Exhibit K).” By way of clarification, impugned notice is dated 24[th] March 2014 and the impugned order rejecting objections is dated 23[rd] January 2015. 5Petition accordingly disposed with no order as to costs. (N. R. BORKAR, J.) (K.R. SHRIRAM, J.)