Wp/994/2022 Of Saifee Burhani Upliftment Trust v. Asst.commissioner Of Income Tax Exemption Circle 2 And 2 Ors

GAURIAMITGAEKWAD Digitally signedby GAURIAMITGAEKWADDate:2022.03.0910:43:08 +0530 IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.994 OF 2022 Saifee Burhani Upliftment Trust ….Petitioner V/s. Assistant Commissioner of Income TaxExemption, Circle – 2 & Ors. ….Respondents---- Mr. Tanzil Padvekar a/w. Mr. R. S. Padvekar for petitioner.Mr. Akhileshwar Sharma for respondents-Revenue. ---- CORAM : K.R. SHRIRAM &N.J. JAMADAR, JJ. DATED : 7[th] MARCH 2022 P.C.: 1At the outset, Mr. Padvekar seeks leave to amend the prayerclause and tenders draft amendment, which is taken on record and marked“X” for identification. 2Leave to amend granted. Amendment to be carried outforthwith. Re-verification is dispensed with. 3Petitioner is impugning notice dated 19[th] March, 2021 forAssessment Year 2015-2016 and the order on objections dated 7[th] January,2022 on the ground that notice has been issued purely on the basis ofchange of opinion which is not permissible in law. 4Admittedly, in this case, notice under Section 148 of the Income Tax Act, 1961 (the Act) has been issued after expiry of four 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 reopen 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. 5Though 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. Even the contents of the noticedoes not cull out any allegations of non disclosure. Paragraph no.7 of thereasons recorded for reopening reads as under : 7. However the assessing officer restricted the assessment ondenial of deficit of Rs.1,82,45,65,800/- to be carried forwardsas claimed by the assessee. Instead of computation of totalincome of the assessee adding the Corpus donation and loan(held as Voluntary contribution) of Rs.210,44,68,000/-. Asthe corpus donation and loans are in the nature of voluntarycontribution, the same should have been treated as part ofreceipt/income from where deduction of expenditure on theobjects of trust could have been allowed.denial of deficit of Rs.1,82,45,65,800/- to be carried forwardsas claimed by the assessee. Instead of computation of totalincome of the assessee adding the Corpus donation and loan(held as Voluntary contribution) of Rs.210,44,68,000/-. Asthe corpus donation and loans are in the nature of voluntarycontribution, the same should have been treated as part ofreceipt/income from where deduction of expenditure on theobjects of trust could have been allowed. 5Therefore, this clearly indicates that it is nothing but a clear case of change of opinion. We will also add that the entire reason isspeculative. 6In the circumstances, petition is allowed in terms of prayerclause – (b) which reads as under : (b) Issue a Writ of Certiorari or a Writ in the nature of Certiorari 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. 7Petition disposed. (N.J. JAMADAR, J.) (K.R. SHRIRAM, J.)