Zydus Nycomed Healthcare Private Limited v. Common Order

SANTOSHSUBHASHKULKARNI Digitally signed bySANTOSHSUBHASHKULKARNIDate: 2022.02.2210:40:27 +0530 IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 2361 OF 2010 WITHWRIT PETITION NO. 2360 OF 2010WITHWRIT PETITION NO. 2362 OF 2010 Zydus Nycomed healthcare Private Limited...PetitionerVersusIncome Tax Officer – 10 (3)(4) & ors....Respondents Mr. V. Sridharan, Senior Advocate, a/w Mr. Ravi Sawana i/bMr. B. V. Jhaveri, for the Petitioner. Mr. Suresh Kumar, for the Respondents. CORAM:K. R. SHRIRAM &N. J. JAMADAR, JJDATED:18[th] FEBRUARY, 2022 COMMON ORDER: 1.Writ Petition No.2361 of 2010 pertains to Assessment Year2004 – 2005, Writ Petition No.2360 of 2010 pertains toAssessment Year 2003 - 2004 and Writ Petition No.2362 of 2010pertains to Assessment Year 2005 – 2006. 2.Since the reasons recorded for proposed reopening arealmost identical, we are disposing these three petitions by thiscommon order. 3.The assessment for the three assessment years mentionedabove are proposed to be reopened under Section 147 of theIncome Tax Act, 1961 (“the Act”) solely based on the allegations made in the Assessment Year 2006 – 2007 i.e. petitioner hadviolated the conditions specified in Section 10B(9) of the Act inthe respective assessment years. 4.Petitioner had challenged the assessment order forAssessment Year 2006 – 2007 before the Commissioner ofIncome Tax (Appeals), who had dismissed the appeal ofpetitioner. Petitioner thereafter challenged the order of theCommissioner of Income Tax (Appeals) for Assessment Year 2006 – 2007 before the Income Tax Appellate Tribunal, Mumbai(“ITAT”). The ITAT by an order dated 26[th] June 2013 allowed theappeal of petitioner for Assessment Year 2006 – 2007 holdingthat petitioner had not violated the conditions provided inSection 10B(9) of the Act during Assessment Year 2003 – 2004. 5.Aggrieved by the order of the ITAT, Revenue filed an appealbefore this Court. By an order dated 24[th] February 2017 thisCourt was pleased to dismiss the appeal by holding that thefinding of the ITAT that petitioner had not violated the conditionof Section 10B(9) of the Act do not suffer from any error. 6.Mr. Shridharan states to the best of petitioner’sknowledge and information the order of the High Court passedon 24[th] February 2017 for Assessment Year 2006 – 2007 has notbeen challenged by the Revenue in the Supreme Court and hence it has become final. 7.Mr. Suresh Kumar also states that he has no instructionsor information regarding any appeal having been filed.Therefore, as on date the order of this Court passed on 24[th]February 2017 is final. 8.Since, as noted earlier, the sole basis for proposedreopening under Section 147 of the Act was on the allegationsmade in the assessment order for Assessment Year 2006 – 2007,i.e., petitioner had violated the condition specified in Section10B(9) of the Act in Assessment Year 2003 – 2004 itself, none ofthe notices can survive in view of the findings mentioned earlierof the ITAT / this Court. 9.In the circumstances, the notices issued under Section 148of the Act dated 30[th] March 2010 in Writ Petition No.2361 of2010, dated 30[th] March 2010 in Writ Petition No.2360 of 2010and dated 30[th] March 2010 in Writ Petition No.2362 of 2010, arehereby quashed and set aside. Consequently the order onobjections passed for the three Assessment Years are alsoquashed and set aside. 10.Petitions disposed with no order as to costs. [N. J. JAMADAR, J.] [K. R. SHRIRAM, J.]