Yogini Bipin Soneta v. Meera Jadhav

Digitallysigned byMEERAMEERAMAHESHMAHESHJADHAVJADHAVDate:2022.01.0518:20:25+0530 IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTIONWRIT PETITION NO.2817 OF 2019 Yogini Bipin Soneta V/s. ….Petitioner Income Tax Officer Ward 29(3)(2) Mumbai & Ors. …Respondents ---- Mr. Devendra H. Jain a/w Ms Radha Halbe for PetitionerMr. Sham V. Walve for Respondents Revenue ---- CORAM : K.R. SHRIRAM &R. N. LADDHA, JJ DATED : 3rd JANUARY 2022 P.C. : 1Petitioner is challenging a notice dated 25[th ]March 2019 issued underSection 148 of the Income Tax Act 1961 (the Act) and the subsequent orderdated 27[th] August 2019 disposing petitioner's objections to the impugnednotice. 2Petitioner had filed return of income on 24[th] July 2012 for A.Y.-2012-2013 disclosing gross total income of Rs.3,73,216/- and total taxableincome of Rs.3,56,250/-. The return was processed under Section 143(1) ofthe Act. Thereafter, petitioner received the notice dated 25[th] March 2019under Section 148 of the Act which is impugned in this petition. Inresponse to petitioner's request, petitioner received reasons for re-openingby a communication dated 20[th] June 2019. In the reasons, it is alleged thatthe Assessing Officer has received information that one Aricent Infra Ltd.was a penny stock scrip and petitioner has traded in this scrip during F.Y.- 2011-2012 and the total transaction amount was Rs.36,54,920/-. Accordingto the Assessing Officer, the assessee has filed the return declaring totalincome of Rs.3,56,250/- and the assessee has shown the income from salaryat Rs.2,25,000/-, income from house property at Rs.1,22,640/-, incomefrom short term capital gains of Rs.22,459/- and income from other sourcesat Rs.3,027/-. According to the Assessing Officer, assessee ought to haveoffered the income on the above said transactions for taxation and furtheras there is no information available on Income Tax Department (ITDsystem) regarding the penny stock, the same needs verification. Petitionerfiled objection to the reasons which was rejected by an order dated 27[th]August 2019, which is also impugned in this petition. 3Mr. Jain attacked the reasons on two points namely; a) the reasonsshould have stated the assessee ought to have offered income on the abovesaid transactions for taxation and not ought to have not offered the incomeand, therefore, there is non application of mind by the Assessing Officer aswell as the sanctioning authority and b) no assessment can be reopened forverification and he relied upon the judgment of a Division Bench of GujaratHigh Court in Principal Commissioner of Income Tax-5 Vs. ManzilDineshkumar Shah[1]. Mr. Jain submitted that the Supreme Court had refusedto interfere in the Special Leave Petition filed by the Revenue against theorder of Gujarat High Court. Mr. Jain submitted relying on ManzilDineshkumar Shah (supra) that reopening of the assessment would not be 1 (2018) 95 taxmann.com 46 (Gujarat) permitted for fishing or roving inquiry and the moment reasons recordedsays, "the same needs verification", it means that the re-opening was afishing or roving inquiry, which is not permissible. 1 (2018) 95 taxmann.com 46 (Gujarat) permitted for fishing or roving inquiry and the moment reasons recordedsays, "the same needs verification", it means that the re-opening was afishing or roving inquiry, which is not permissible. 4Per contra, Mr. Walve opposes the petition and submitted that courtshould not exercise its jurisdiction under Article 226 of the Constitution ofIndia. Mr. Walve submitted that after the notice under Section 148 of theAct was issued, petitioner filed its return of income in compliance with thenotice on 2[nd] May 2019 showing upward revision. Mr. Walve submitted thatpetitioner had earlier filed returns on 24[th] July 2012 declaring a gross totalincome of Rs.3,73,216/- and only after petitioner received the notice dated25[th] March 2019 under Section 148 of the Act, that this upward revision wasdisclosed to the Income Tax authorities. Mr. Walve submitted that petitionerwould have otherwise not paid the tax which was due and petitioner'sexplanation that by oversight a short term capital gain on a scrip namedVikas Wsp Ltd. or that petitioner inadvertently skipped capital gain in itsoriginal return of income is nothing but an after thought. Mr. Walve alsorelied upon explanation 3 to Section 147 as it then was in force to submitthat for the purpose of assessment or reassessment under Section 147, theAssessing Officer may assess or reassess the income in respect of any issuewhich has escaped the assessment and such issue comes to his noticesubsequently in the course of the proceedings under this Section,notwithstanding that the reasons for such issue have not been included inthe reasons recorded under sub-Section (2) of Section 148 of the Act. 5 5We have considered the submissions made by the counsel and also thepleadings filed. Admittedly, petitioner had not offered to tax the short termcapital gains on scrip named Vikas Wsp Ltd. Admittedly, it was offered onlyafter petitioner received the notice under Section 148 of the Act. Even if,we hold that the reasons are not very happily worded, still the fact thatpetitioner after almost 6 years and after receiving the notice under Section148 filed return showing upward revision, itself would mean that theAssessing Officer would be entitled to reopen the assessment. Though, wewould agree with Mr. Jain that reopening of the assessment is not permittedfor fishing or roving inquiry or for verification purpose, still the fact thatpetitioner has filed returns in response to the notice under Section 148 ofthe Act and disclosing therein that short term capital gains earned in F. Y.-2011-2012 was not offered to tax, would itself entitle the Assessing Officerto issue notice under Section 142(1) of the Act calling for further details. Ifwe interfere, the Revenue may suffer. 6In the circumstances, we do not wish to exercise our jurisdictionunder Article 226 of the Constitution of India. Petitioner may adopt thealternate remedy that is available under the provisions of the Act. Keepingopen all rights and contentions of petitioner to be raised before theAssessing Officer, petition dismissed. (R. N. LADDHA, J) (K.R. SHRIRAM, J.)