Writ Petition No. 1269 of 2015. Case: MSPL Gases Ltd. Vs The Deputy Commissioner of Income Tax-1(2)(2) and Ors.. High Court of Bombay (India)
| Case Number | Writ Petition No. 1269 of 2015 |
| Counsel | For Appellant: P.J. Pardiwalla, Senior Counsel, Satish R. Mody and Aasifa Khan, Advs. and For Respondents: Anil Singh, ASG and Suresh Kumar, Adv. |
| Judges | M. S. Sanklecha and B. P. Colabawalla, JJ. |
| Issue | Constitution of India - Article 226; Income Tax Act, 1961 - Sections 143(3), 147, 148, 264 |
| Judgement Date | January 27, 2016 |
| Court | High Court of Bombay (India) |
Judgment:
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Rule. Respondents waive service. By consent of parties, Rule is made returnable forthwith and heard finally.
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This Petition under Article 226 of the Constitution of India challenges a notice dated 14th March, 2014 issued under Section 148 of the Income Tax Act(the "Act") seeking to reopen the assessment for the AY 2010-11 and the order dated 3rd February, 2015 passed under Section 143(3) read with Section 147 of the Act for the AY 2010-11.
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The undisputed facts in the present case are that consequent to the reopening notice dated 14th March, 2014, the Assessing Officer has passed an assessment order dated 3rd February 2015. However, the Assessing Officer has passed the order of reassessment on 3rd February, 2015 for AY 2010-11 without disposing of the Petitioner's objections dated 2nd May 2014 to the reopening notice dated 14th March 2014 in complete defiance of the decision of the Apex Court in the case of GKN Driveshafts (India)Ltd v/s Income Tax Officer and Others, reported in 259 ITR 19(SC). The Apex Court in the above case had laid down that before taking up the reassessment consequent to reopening notice under section 147 of the Act, the reasons recorded for reopening the assessment should be forwarded to the Assessee and if the Assessee objects to the same, he should first dispose of its objections to the reopening notice.
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When the Petition reached effective hearing for the first time on 23rd July 2015 for admission, the Revenue accepted the position that the order dated 3rd February 2015 passed on reopening of assessment for AY 2010-11 is without jurisdiction and the same be set aside. However, we were disturbed as on quite a few occasions we had noticed the orders on reassessment were being passed without disposing of the objections. However, in Court the Revenue accepts the position that the order is not sustainable. We were of the view that if a mechanism could be put in place by the Revenue to recall an order such as this (where even the Revenue concedes that the order dated 3rd February 2015 is without jurisdiction). This for the reason that otherwise Assessees are being unnecessarily harassed and have to move the Court to remedy the injustice to have the order which is ex facie without jurisdiction, set aside.
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In fact, on 7th December, 2015 the Principal Commissioner of Income Tax along with the Commissioner of Income Tax(Judicial) attended Court and conceded the position that the impugned order dated 5th...
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