Wp/85/2020 Of Manish Dharnidhar Shah v. The Assistant Commissioner Of Income Tax, Circle 17 (2) And 2 Ors

Digitallysigned by1/3MEERAMEERAMAHESHMAHESHJADHAVJADHAVDate:2022.03.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY10:41:23+0530ORDINARY ORIGINAL CIVIL JURISDICTIONWRIT PETITION NO. 85 OF 2020 Manish Dharindhar Shah ….Petitioner V/s.The Assistant Commissioner of Income TaxCircle 17(2) & Ors. …Respondents ---- Mr. J. D. Mistri, Sr. Advocate a/w Mr. Niraj Sheth i/b Mr. Atul K. Jasani forPetitionerMr. Suresh Kumar for Respondents ---- CORAM : K.R. SHRIRAM &N.J. JAMADAR, JJ DATED : 9[th] MARCH 2022 N.J. JAMADAR, JJ P.C. : 1Petitioner is impugning a notice dated 30[th] March 2019 issued under Section 148 of the Income Tax Act 1961 (the said Act) for A. Y.-2010-2011 and 2012-2013 and order dated 26[th] November 2019 passed by respondentno.1 rejecting petitioner’s objections to the reopening. 2We are rather shocked to note that the reasons provided to petitioner for reopening is different from the reasons submitted to the authorities under Section 151 of the Act for approval. Paragraph 2 of the reasons provided to petitioner reads as under: “2. It is ascertained from ITD system that the assessee Shri ManishShah has filed return of income for A. Y.-2012-13 on 30/07/2011,whereby declared total income of Rs.50,11,821/-.” Whereas paragraph 2 of the reasons submitted for approval under Section 151 of the Act reads as under: “2. It is ascertained from ITD, system that the assessee Shri ManishShah has filed return of income for A. Y. 2012-2013 on 29/09/2012,whereby declared total income of Rs.65,76,712/-. Subsequently, thecase was selected for scrutiny and order u/s 143(3) of the Act waspassed on 05.03.2015 assessed the total income at Rs.65,77,260/-.” 3Therefore, on this ground alone the notice issued under Section 148 of the Act has to be quashed and set aside. In effect there was no approvalto issue the notice on the basis of the reasons provided to petitioner. 4Moreover, in the objections filed by petitioner vide its CharteredAccountant’s letter dated 30[th] September 2019, it is stated that the assessee’scase for A.Y.-2010-2011, 2011-2012 were also reopened on the samegrounds and the Assessing Officer while passing the order dated 27[th]December 2016 and 28[th] December 2016 passed under Section 143(3) readwith Section 147 of the Act, has accepted the stand of the assessee of taxingthe income from Thane property as business income. The photocopies ofthe said orders were also provided. Notwithstanding this, order dated 26[th]November 2019 impugned in this petition, is totally silent on this fact. Wewill also observe that the order dated 26[th] November 2019 has not dealtwith any submissions of petitioner on merits and on this ground alone theorder requires to be quashed and set aside. 5In the circumstances, we allow the petition in terms of prayer clause (a), which reads as under: “(a) to issue a Writ of Certiorari or a Writ in the nature of Certiorarior any other appropriate Writ Order or direction under Article 226 ofthe Constitution of India calling for the records of Petitioner’s caseand after examining the legality and validity thereof, quash and setaside the impugned notice dated 30[th] March 2019 (Exhibit J) issuedby respondent no.1 under Section 148 of the Act to reopen theor any other appropriate Writ Order or direction under Article 226 ofthe Constitution of India calling for the records of Petitioner’s caseand after examining the legality and validity thereof, quash and setaside the impugned notice dated 30[th] March 2019 (Exhibit J) issuedby respondent no.1 under Section 148 of the Act to reopen the assessment for the assessment year 2012-2013 as well as theimpugned order dated 26[th] November 2019 (Exhibit N) rejectingpetitioner’s objections for the assessment year 2012-2013.” 6Petition disposed. (N. J. JAMADAR, J.) (K.R. SHRIRAM, J.)