Wp/413/2013 Of Merit Magnum Construction v. Asstt. Commissiioner Of Income Tax And Ors

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.413 OF 2013 Merit Magnum Construction(Formerly known as Vimal Builders) : Petitioner V/s. Assistant Commissioner of Income Tax -Circle 21(2) & Ors.: Respondents..... Mr.Nishant Thakkar with Mr.G.S.Sabharwal i/b. M/s.Mahimtura & Co., for the Petitioner. Mr.Abhay Ahuja for the Respondents. ..... CORAM : DR.D.Y.CHANDRACHUD & A.A. SAYED, JJ. DATE : 07 MARCH 2013. P.C.: By a notice dated 7 January 2013, the assessment of the Petitioner is sought to be re-opened for Assessment Year 2009-10 on the basis of the following reasons:- “The assessee is a partnership firm and filed its Return of income on 29.09.2009 declaring total income at Rs.1,01,970/- which was processed u/s. 143(1) on 30.3.2011. During the course of assessment proceedings for AY 2010-11 and post survey investigations, the details filed revealed that the assessee firm has entered into a joint development agreement with M/s.Joyce Realtors Private Limited vide agreement dated 24.4.2008 registered with the office of registrar on 10.7.2008 i.e. FY 2008-09 relevant to AY 2009-10 for a consideration of Rs.60 Crores whose market value as per stamp duty authorities is given at Rs.67,39,63,500/- for project at Village Deonar. There has been no reference in its return of income filed for the period under consideration. To this extent assessee failed to disclose fully and truly all material facts necessary for the assessment for AY 2009-10.Therefore, in the considered opinion of the undersigned, the income chargeable to tax to the tune of Rs.67,39,63,500/- has escaped assessment. Further, to verify the facts, ITS details were obtained from the ITD system which revealed that the assessee has received an interest to the tune of Rs.1,33,88,538/- which does not find place in its return of income. Therefore, interest income to the tune of Rs.1,33,88,538/- has also escaped assessment. From the reasons recorded as above, I have reasons to believe that the income chargeable to tax for AY 2009-10 to the tune of Rs.67,39,63,500/- and Rs.1,33,88,538/- totaling to Rs.68,73,52,038/- has escaped assessment.” 2. In the present case, the return filed by the Petitioner was processed under section 143(1) and there has been no assessment under section 143(3). The grievance of the Petitioner is that its objections to the re-opening as stated in the letter dated 29 January 2013 have not been disposed of. The Assessing Officer has dealt with the objections in his communication dated 31 January 2013 and has correctly held that taxability of the amount received will be dealt with during the course of the re-opening proceedings. No case is made out for interference under Article 226 of the Constitution. 3. The Petition is dismissed. There shall be no order as to costs. (Dr. D.Y.Chandrachud, J.) (A.A. Sayed, J.)