Wp/3224/2019 Of Dhiren Anantrai Modi v. Income Tax Officer Ward 33(1)(4)

Digitally signed byPURTI PRASADPARABDate: 2021.12.1718:02:53 +0530 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 3224 OF 2019 Dhiren Anantrai Modi V/s. Income Tax Officer ….Petitioner …Respondent ---- Mr. Nishit M. Gandhi a/w Ms. Akshita Bhandari for Petitioner.Mr. Arvind Pinto for Respondent. ---- CORAM : K.R. SHRIRAM &AMIT B. BORKAR, JJ. DATED : 15[th] DECEMBER 2021 P.C. : 1.Petitioner is impugning notice dated 26[th] March, 2019 issuedunder Section 148 of the Income Tax Act, 1961 (the Act) and the orderdated 22[nd] October, 2019 disposing petitioner’s objections to the re-opening. 2.Petitioner has challenged notice dated 26[th] March, 2019 onvarious grounds including non application of mind by the Assessing Officerwhile issuing notice. 3.We have considered the petition with documents annexedthereto, reply filed by respondent and also heard Mr. Gandhi and Mr. Pinto. 4.On bare perusal of the reasons it is quite evident that thereasons are based on totally erroneous and in correct facts and without non application of mind. In the reasons it is stated “The assessee is anindividual and the Return of Income for A.Y. 2012-13 was filed on 24[th]September, 2012 declaring total loss of Rs.4,21,11,382/- and the same wasprocessed by the C.P.C. …….It is pertinent to mention here that in this casethe assessee had filed return of income for the year under consideration butno assessment as stipulated under Section 2(40) of the Act was made andthe return of income was only processed under Section 143(1) of the Act.In view of the above, provisions of clause (b) of explanation 2 to section147 are applicable to facts of this case and the assessment year underconsideration is deemed to be a case where income chargeable to tax hasescaped assessment”. 5.The fact is the return of income for A.Y. 2012-13 filed bypetitioner on 24[th] September, 2012 has been assessed under Section 143(3)of the Act and the Assessment Order dated 31[st] March, 2015 has beenpassed. Therefore, the Assessing Officer has proceeded on erroneous factualbasis that the return of income was only processed under Section 143(1) ofthe Act. That displays total non application of mind. In fact, petitioner’sallegations that Respondent No.1 has sought to re-open the assessment onincorrect factual position that the return of income was only processedunder Section 143(1) of the Act has not even been denied in the affidavit inreply which is filed by the same Assessing Officer. In paragraph no.2 of theaffidavit in reply which is in response to paragraph no.1 and 2 of the petition, Respondent No.1 simply says that these are factual in nature andthe notice under Section 148 dated 26[th] March, 2019 and the orderdisposing the objections and the notice dated 22[nd] October, 2019 are issuedin pursuance of the objective of completing reassessment in accordance withthe procedures laid down. On this ground alone, the notice dated 26[th] March, 2019 has tobe set aside. 6.Moreover, Mr. Gandhi submitted that despite repeated requestsfor copy of the sanction under Section 151 of the Act, the same has not beenprovided. The averment to that effect in the petition has not even beendenied in the affidavit in reply and respondent, in the affidavit in reply hasnot even bothered to annex the sanction obtained which gives us a feelingthat the said Mr. Ramesh C. Meena who issued notice under Section 148 ofthe Act containing errors of facts and who has filed affidavit in reply doesnot wish to produce the same. We have to, therefore draw adverseinference against respondent that if it is disclosed it may be prejudicial tothe interest of Revenue. 7.One wonders whether the sanctioning authority under Section151 of the Act also would have even applied his mind because the reasonsrecorded as noted above itself displays non application of mind by theAssessing Officer. Therefore, either no sanction as contemplated under 7.One wonders whether the sanctioning authority under Section151 of the Act also would have even applied his mind because the reasonsrecorded as noted above itself displays non application of mind by theAssessing Officer. Therefore, either no sanction as contemplated under Section 151 of the Act has been obtained or the same was grantedmechanically without application of mind to the facts because if onlythe Assessing Officer had placed the entire file before the sanctioningauthority he would have pointed out the error in the reasons for re-opening. 8.In the circumstances, petition is allowed in terms of prayer clause (a) which read as under : (a)That this Hon’ble Court may be pleased to issueunder Article 226 of the Constitution of India an appropriatedirection, order or a writ, including a writ in the nature of‘Certiorari”, calling for the records of the case and, aftersatisfying itself as to the legality thereof, quash and set asidethe Notice u/s 148 dated 26.03.2019, Ex. “H” herein, theorder disposing objections dated 22.10.2019, Ex. “K” hereinpassed by the Respondent and also the Notice/summonsdated 22.10.2019, Ex. “L” herein issued by the Respondent. 9.Petition disposed. (AMIT B. BORKAR, J.) (K.R. SHRIRAM, J.)