Wp/3405/2019 Of Rustomjee Evershine Joint Venture v. Assitant Commisioner Of Income Tax - Central Circle 2(4) And 2 Ors

GAURIAMITGAEKWAD Digitallysigned byGAURI AMITGAEKWADDate:2021.12.2110:28:59+0530 IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.3405 OF 2019 Rustomjee Evershine Joint Venture ….Petitioner V/s.Assistant Commissioner of Income TaxCentral Circle - 2(4) & Ors. ….Respondents ---- Mr. Harsh M. Kapadia for petitioner.Mr. Suresh Kumar for respondents. ---- CORAM : K.R. SHRIRAM &AMIT B. BORKAR, JJ. DATED : 20[th] DECEMBER 2021 AMIT B. BORKAR, JJ. P.C. : 1Petitioner is impugning a notice dated 27[th] March 2019 issuedunder Section 148 of the Income Tax Act, 1961 (the said Act) forAssessment Year 2012-2013 and the order dated 5[th] October 2019 rejectingthe objections. 1 2We have considered the reasons annexed to the petition. Thenotice under Section 148 of the said Act being issued after the expiry of fouryears and and the assessment having been completed under Section 143(3)of the said Act, the proviso to Section 147 of the said Act applies.Respondents have to show there was failure to truly and fully disclosematerial facts. We have considered the reasons and there is nothing toindicate there was failure to disclose any material fact. The entire reasons isbased on change of opinion which is not permissible. According to the Assessing Officer, the interest expense, which had been allowed earlier asrevenue expenditure, should be allowed as business expenditure in ratio ofthe revenue offered from the project and work in progress at the end of theyear. The entire basis starts with "on perusal of the records". Infact when thecase was picked up for scrutiny and the assessment was completed underSection 143(3) of the said Act, vide order dated 17[th] March 2015, theAssessing Officer had accepted petitioner's assessment of total income at aloss of Rs.19,05,42,694/-. 3In the circumstances, petition is allowed in terms of prayer clause - (a) which reads as under : (a) that this Hon'ble Court may be pleased toissue a Writ of Certiorari or a Writ in the natureof Certiorari or any other appropriate Writ,Order or direction, calling for the records of thePetitioner's case and after going into the legalityand propriety thereof, to quash and set aside thesaid notice dated 27[th] March 2019 (Exhibit I)and the subsequent Order dated 5[th] October2019 (Exhibit L). 4Petition disposed. (AMIT B. BORKAR, J.) (K.R. SHRIRAM, J.)