Wp3928_21.Doc v. Heard Shri. Pardiwalla And Shri. Walve

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTIONWRIT PETITION NO.3928 OF 2021 Diamond Forever International…PetitionerVs.Deputy Commissioner of Income Tax and others…Respondents Mr. Percy Pardiwalla, Senior Advocate a/w. Mr. Madhur Agarwal i/b.Saldanha Ryan Rudolp for Petitioner.Mr. Sham V. Walve for Respondents. P.C.:- CORAM : K. R. SHRIRAM &R. N. LADDHA, JJ.DATE :JANUARY 18, 2022 1.Heard Shri. Pardiwalla and Shri. Walve. 2.Though Shri. Walve made a valiant effort to support the reasonsrecorded for re-opening, when the Court confronted Shri. Walve withfacts from the documents annexed to the petition, he in fairness agreedthat it was a clear case of change of opinion. In the reasons recorded forre-opening, the Jurisdictional Assessing Officer has issues regardingexemption granted under Sections 10A and 10AA of the Income TaxAct, 1961. In the reasons, the Assessing Officer states as under:- “Statutory notices u/s.143(2) & 142(1) were issued and assessmentwas finalised by the then AO accepting the returned income ofRs.Nil after allowing deduction u/s.10AA in toto. On perusal of the assessment record, it is observed that the P&Laccount of the assessee firm does not show any activity likemanufacturing or production or rendition of services, though theunit is in SEZ. Thus, the assessee firm is not satisfying themandatory conditions as specified in section 10AA(1) of the Act ofits engagement in the activity of manufacturing or production ofarticles for rendition of services. For the sake of convenience,section 10AA(1) of the Act is reproduced hereunder:” 3.In the reasons itself he admits that the Assessing Officer has takena conclusive view on allowing deduction under Section 10AA of the Act in toto. In fact, the assessment order dated 6[th] July 2015 also provides, “The assessee has claimed exemption u/s.10AA of the IT Act, 1961.The eligibility conditions are verified and after verification the sameis allowed.” 4.In the circumstances, it is nothing but change of opinion, which isnot permissible. The petition is accordingly allowed in terms of prayerclause (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 Article226 of the Constitution of India calling for the records of thecase leading to the issue of the impugned notice and passing ofthe impugned order and after going through the same andexamining the question of legality thereof quash, cancel andset aside the impugned notice (Exhibit E) dated 31[st] March,2021 and impugned order (Exhibit J) dated 21[st] October, 2021. 5.Petition disposed. (R. N. LADDHA, J.) (K. R. SHRIRAM, J.) Minal Parab