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2016 (4) TMI 1038 - BOMBAY HIGH COURT

2016 (4) TMI 1038 - BOMBAY HIGH COURT - [2016] 383 ITR 498 - Reopening of assessment - Held that:- In the present case, the Assessing Officer is bestowed with the powers to reopen an assessment subject to satisfaction of conditions laid down in Sections 147 and 148 of the Act. The petitioner has chosen to submit itself to his jurisdiction and the objections to the reasons are made in the course of reassessment proceedings. The petitioners in this case having participated in the proceedings, do n .....

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abhale For The Respondent : Mr. Arvind Pinto P.C. 1. This petition under Article 226 of the Constitution of India challenges the notice dated 30th March, 2015 issued under Section 148 of the Income Tax Act, 1961 (the Act). The impugned notice seeks to reopen the assessment for Assessment Year 200809. 2. The impugned notice dated 30th March, 2015 issued under Section 148 of the Act intimated to the petitioner that the Assessing Officer has reason to believe that income chargeable to tax has escap .....

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3. On 4th January, 2016, the Assessing Officer furnished to the petitioner reasons recorded while issuing the impugned notice dated 30th March, 2015. Thereafter, on 4th January, 2016 itself, the Assessing Officer issued notices under Section 142(1) and 143(2) of the Act seeking various details for the purposes of assessing the petitioners to tax in respect of the assessment year 200809. The above notices also called upon the petitioner to attend the office of the Assessing Officer on 8th January .....

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ng Officer but pointed out that the information is being submitted subject to the objections to the impugned notice which would be filed by it. On 22nd January, 2016 the petitioners filed its objections to the reasons recorded in support of the impugned notice. On 25th January, 2016, the Assessing Officer disposed of the objections to the reasons recorded in support of the impugned notice. This petition was filed on 2nd March, 2016 and at the instance of the petitioners adinterim relief was gran .....

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ch the objections have been dealt with by the Assessing Officer, we called upon Mr. Gupta, the learned Senior Counsel to address us only on the issue of exercising our extraordinary jurisdiction in the present facts viz the petitioner having participated in the assessment proceedings and there being an efficacious alternative remedy under the Act from the orders passed by the Assessing Officer. 7. In response, Mr. Vimal Gupta, learned Senior Counsel for the petitioners submits as under :( a) The .....

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order to its prejudice; (b) The giving of information by the letter dated 14th January, 2016 was without prejudice to its objections to the reasons which were to be filed in due course. Thus, there was no participation in proceedings before the Assessing Officer; and (c) A compilation of judgments were filed in support of the petition. However out of the compilation, attention was invited toand reliance was placed only upon following three decisions : (i) Commissioner of Income Tax Vs. ITSC & .....

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n without reference to the facts before us. Therefore, where the petitioners have participated in the proceedings under the Act before the Assessing Officer and thereafter file a writ petition on the ground that the authority has no jurisdiction, we normally will not entertain the petition. This is particularly so as an effective alternative remedy is available under the Act, to set aside the orders passed by the authority, which the petitioner claims is without jurisdiction. The provisions unde .....

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its itself to the jurisdiction of the Assessing Officer and challenges the issue of his jurisdiction during the course of proceedings of reassessment, we would not normally exercise our jurisdiction. This is also particularly so as the petitioners are not remedyless and can challenge the orders of the Assessing Officer before the appellate authorities under the Act and secure the same ultimate relief. 9. In this case, we find that the petitioners have filed detailed information called for by the .....

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n the present facts, the petitioners have participated in the proceedings before the Assessing Officer. The objections to the reasons recorded by the Assessing Officer in support of the impugned notice during the assessment proceedings is to point out to him the reassessment proceedings are bad as the requirement of Sections 147 and 148 of the Act are not satisfied. It would be completely different scenario where the petitioners have not participated in the proceedings before the Assessing Offic .....

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ed notice was issued on 30th March, 2015 calling upon the petitioners to file its Return of Income within 30 days. However, the petitioners chose to file its Return of Income only on 29th December, 2015 and thereafter sought reasons in support of the impugned notice. This delay in filing the Return of Income cannot be lost sight of when one bears in mind the fact that the reopening proceedings have to be completed within one year from the end of the financial year, in which the impugned notice s .....

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h Mr. Gupta, learned Senior Counsel for the petitioners place reliance, in our view, do not apply to the facts and circumstances arising in this particular case. The exercise of our extraordinary jurisdiction is dependent upon the facts arising before us. The case laws can only be guidelines in exercise of our extraordinary writ jurisdiction. The case laws relied upon are not applicable for reasons listed hereunder : (a) In P.R. Easwaran (supra), the High Court of Madras entertained the petition .....

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ase before it judicial intervention was justified. In the present facts, we do not deem it appropriate to exercise our extraordinary jurisdiction as the petitioner has in fact submitted to the jurisdiction of the Assessing Officer and has an efficacious alternative remedy under the Act. (b) The reliance placed on the decision of the Apex Court in Whirlpool Corporation (Supra), in the present facts is inappropriate as the petitioners therein had not invoked the writ jurisdiction of the Court unde .....

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native remedy of an appeal is available. The Settlement Commission in the facts of that case exercised jurisdiction even though according to the Revenue in its challenge before the Court, the applicant had failed to make true and full disclosure of all the material facts in its application for settlement. Thus, it was contended that it had not jurisdiction. The assessee before the Court pleaded that as the Revenue had participated in the proceedings before the Settlement Commission, it is not op .....

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