Wp/1805/2019 Of Hindustan Aegis Lpg Limited v. Assistant Commissioner Of Income Tax 1(1)(2) And 2 Ors

JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1805 OF 2019 Hindustan Aegis LPG Limited… Petitioner V/s. Assistant Commissioner of Income Tax 1(1)(2) and Ors.... Respondents. Mr. Percy Pardiwala, Senior Advocate a/w. Madhur Agarwal i/b.Jitendra Singh for the Petitioner. Mr. Suresh Kumar for the Respondents. CORAM : M.S. SANKLECHA & NITIN JAMDAR, JJ. DATE : 19 NOVEMBER 2019. P.C.:- Heard. 2. Rule. 3.This Petition challenges a notice dated 31 March 2019seeking to reopen the assessment for Assessment Year 2013-14. Theregular assessment proceedings were completed under Section 143(3) of the Income Tax Act, 1961 (Act). The impugned notice isclearly beyond the period of four years from the end of the relevantassessment year. Thus, the jurisdiction to issue such a notice wouldonly arise if there is failure on the part of the Petitioner to truly andfully disclose all material facts necessary for assessment. The reasonsrecorded in support of the impugned notice make no reference toany fresh tangible evidence but is based on examination of the recordby the Assessing Officer. Thus prima-facie the impugned notice ishit by the proviso to Sections 147 of the Act. Besides, the reason tobelieve that income chargeable to tax has escaped assessment is twofold i.e. one the interest income ought to have been taxed as incomefrom other sources and not as business income and second that theexpenses debited under the head other expenses weredisproportionate. Both these issues were not only disclosed by thePetitioner in its profit and loss account but were examined by theAssessing Officer during the regular assessment proceedings. Thesame is evidenced according to the Petitioner by letter dated 3August 2016 submitted during the regular assessment proceedings.However, the same is disputed by the Revenue. It may be pointedout that the Assessing Officer has not disputed by affidavit theaffidavit, of the Chartered Accountant who attended the hearingbefore the then Assessing Officer stating that he had submitted theletter giving these details to the Assessing Officer during the courseof the hearing. 4.Thus, prima-facie, the impugned notice appears to bewithout jurisdiction as there was no failure on the part of theAssessee to disclose the truly and fully all facts necessary forassessment and on account of change of opinion. 5.In view of the above, there shall be an interim stay interms of prayer clause (d). 6.Mr. Suresh Kumer, learned Counsel waives service forthe Respondents. NITIN JAMDAR, J. M.S. SANKLECHA, J.