Wp/3613/2019 Of Bhadresh Dipchand Doshi v. Assistant Commissioner Of Income Tax Circle 26(1) And 2 Ors

Digitallysigned byGAURIGAURI AMITGAEKWADAMITDate:GAEKWAD2022.04.1317:25:10 IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION +0530 WRIT PETITION NO.3613 OF 2019 Bhadresh Dipchand Doshi ….Petitioner V/s. Assistant Commissioner of Income Tax, Circle – 26(1) & Ors. ….Respondents---- Ms. Radha Halbe i/b. Mr. Devendra Jain for petitioner. Mr. Suresh Kumar for respondents. ---- CORAM : K.R. SHRIRAM &N.R. BORKAR, JJ. DATED : 12[th] APRIL 2022 P.C.: 1Petitioner is impugning a notice dated 31[st] March 2019 issuedunder Section 148 of the Income Tax Act, 1961 (the Act) for AssessmentYear 2012-2013 and the order on objections dated 20[th] November 2019. 2Various grounds have been raised but one of the most strikingground is that the reasons to reopen is based on information that wasreceived from ADIT (Inv.), Unit 8(2), Mumbai. The same information hasbeen received even before the assessment proceedings were completed andthe assessment order dated 28[th] December 2018 came to be passed. In theassessment order for Assessment Year 2011-2012 the same information isreferred to which the Assessing Officer has considered and accepted theexplanation of petitioner. 3We have to also note that by a letter dated 7[th] April 2014 noticeunder Section 142(1) of the Act was issued to petitioner and petitioner was directed to explain the transaction entered into by petitioner in the name ofKuvam International Fashions Limited. Ms. Halbe states that the name ofKuvam International Fashions Limited was later changed to Aarya GlobalShares and Securities Limited and it is also so stated in the assessment orderdated 28[th] December 2018 for Assessment Year 2011-2012. 4Petitioner has given explanation and all document by theirletters dated 20[th] August 2014, 27[th] October 2014 and 11[th] November 2014.Therefore, the issue was subject of consideration during the assessmentproceedings. Mr. Suresh Kumar submitted that the same has not beendiscussed in the assessment order. It is settled law that once a query israised and answer is given, the Court has to proceed on the basis that it wasunder consideration by the Assessing Officer even if there is no reference toit and the Assessing Officer has accepted the explanation given by petitioner.Therefore, it is a clear case of change of opinion, which is not permissible. 5 In the circumstances, as we are satisfied that the proposedreopening is based on change of opinion, the notice dated 31[st] March 2019impugned in this petition has to be quashed and set aside. Therefore,petition is allowed in terms of prayer clause – (a), which reads as under : (a) that this Hon’ble Court may be pleased to issuea Writ of Certiorari or a Writ in the nature ofCertiorari or any other appropriate Writ, Order ordirection, calling for the records of the Petitioner’scase and after going into the legality and proprietythereof, to quash and set aside the notice u/s. 148dated 31.03.2019 (Exhibit D) and the subsequent Order dated 20.11.2019 (Exhibit N) disposing ofpetitioner’s objections on the issue of impugnednotice. 6Petition accordingly stands disposed. (N.R. BORKAR, J.) (K.R. SHRIRAM, J.)