Wp/908/2022 Of Saifee Burhani Upliftment Trust v. Asst. Commissioner Of Income Tax, Exemption, Circle-2, Mumbai And 2 Ors

Digitallysigned byPURTIPURTIPRASADPRASADPARABPARABDate:2022.03.05 14:43:47+0530 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 908 OF 2022 Saifee Burhani Upliftment Trust V/s.Asst. Commissioner of Income Tax,Exemption, Circle – 2 Mumbai& Ors. ….Petitioner …Respondents ---- Mr. Riyaz Padvekar a/w Mr. Tanzil Padvekar for Petitioner.Mr. Akhileshwar Sharma for Respondents-Revenue. ---- CORAM : K.R. SHRIRAM & N. J. JAMADAR, JJ. DATED : 3[rd] MARCH, 2022 P.C. : 1.At the outset, Mr. Padvekar seeks leave to amend the prayerclause to include date of the notice as well as order disposing objections.Leave to amend granted. Amendment to be carried out forthwith. Reverification is dispensed with. 2.Petitioner is impugning notice dated 19[th] March, 2021 and theorder on objections dated 7[th] January, 2022 on the grounds that notice hasbeen issued purely on the basis of change of opinion which is notpermissible in law. 2. 3.Admittedly, in this case, notice under Section 148 of the IncomeTax Act, 1961 (the Act) has been issued after expiry of seven years from theend of the relevant assessment year and the assessment proceedings has been completed under Section 143(3) of the Act. Therefore, proviso toSection 147 of the Act shall apply. As per proviso there is bar to re-open theassessment after expiry of four years from the end of the relevantassessment year unless respondent has been able to show that there is nondisclosure of material facts by petitioner for assessment. 4.Though no reply has been filed, we decide to take up thepetition for hearing with the assistance of Mr. Padvekar and Mr. Sharma.There is nothing in the reasons recorded to indicate that there was nondisclosure of material facts by petitioner. Not only is there no allegations,even the contents of the notice does not cull out any allegations of nondisclosure. Paragraph no.7 of the reasons recorded for re-opening reads asunder : xxxxx 7. However the assessing officer restricted the assessmenton denial of deficit of Rs.1,87,72,26,267/- to be carriedforwards as claimed by the assessee. Instead of computationof total income of the assessee adding the Corpus donationand loan (held as Voluntary contribution) ofRs.182,89,01,500/-. As the corpus donation and loans are inthe nature of voluntary contribution, the same should havebeen treated as part of receipt/income from where deductionof expenditure on the objects of trust could have beenallowed. xxxxx 5.Therefore, this clearly indicates that it is nothing but a clearcase of change of opinion. We will also add that the entire reason is speculative. 6.In the circumstances, petition is allowed in terms of prayer clause – (b) which reads as under : (b) Issue a Writ of Certiorari or a Writ in the nature ofCertiorari or any other appropriate Writ, order or directionunder Article 226 of the Constitution of India quashing andsetting aside impugned Notice dated 19/03/2021 (Exhibit“A”) and also order disposing objections dated 07/01/2022(Exhibit “L”) and also if any re-assessment order is passedduring the pendency of this Petition. 7.Petition disposed. (N. J. JAMADAR, J.) (K.R. SHRIRAM, J.)