Bombay High Court
Upal Developers Pvt.Ltd vs Deputy Commissioner Of ... on 20 January, 2022
Bench: K.R. Sriram, R. N. Laddha
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 158 OF 2020
Upal Developers Pvt. Ltd., ... Petitioner.
Vs.
Deputy Commissioner of Income-Tax,
Ranje-6, Lucknow & 3 Ors. ...Respondents.
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Mr. P. J. Pardiwalla, Senior Advocate a/w. Mr. Madhur Agrawal i/b. Mr. Atul
K. Jasani for the Petitioner
Mr. Suresh Kumar, Advocate for the Respondents.
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CORAM : K.R. SHRIRAM & R.N. LADDHA, JJ.
DATED : JANUARY 20, 2022
(Through Video Conferencing)
P.C. :
1. Heard Shri Pardiwalla and Shri Suresh Kumar.
2. This Court by Judgment dated 6 December, 2021 in Writ Petition
No. 2959 of 2019 filed by the same Petitioner, challenging notice of
reopening for A.Y. 2012-13, held that notice was not valid and the Court set
aside the notice. Reason for reopening, as recorded in the present Petition,
Shri Pardiwalla states is almost identical to the reason for reopening that
was recorded for A.Y.2012-13, the difference being in the figures, primarily.
Shri Pardiwalla also states that another minor difference was, for A.Y.
2012-13, the notice was received after four years; whereas in the present
Petition it is within four years from the end of the assessment year.
Tangible material relied upon the notice are almost identical. Shri Suresh
Kumar, in fairness, agrees with Shri Pardiwalla.
3. We have also considered the Judgment dated 6 December, 2021 in
Writ Petition No. 2959 of 2019 and we would also agree with the Counsels -
Digitally signed by
SHALIKRAM SHALIKRAM
PRALHADRAO PRALHADRAO BOREY
Date: 2022.01.21 14:31:07
BOREY +0530
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the basis for proposed reopening is that other service charges was for
service inseparably connected with the letting out of the building by the
assessee and the assessee was not running any separate business to account
for these receipts as business receipts and, therefore, these receipts should
be part of income from house property only.
4. Moreover, even in this case, queries were raised by the Assessing
Officer and answers with documents have been provided to the Assessing
Officer before the assessment order dated 9 December 2016 was passed
under section 143 (3). It is also obvious from the reasons for reopening
that it is nothing but change of opinion. Therefore, the Petition is allowed in
terms of prayer clause (a), which reads as under :
"a. that this Hon'ble Court be pleased to issue a Writ of
Certiorari or any other writ order or direction under Article 226
of the Constitution of India calling for the records of the case
leading to the issue of the impugned notice and passing of the
impugned order and after going through the same and examining
the question of legality thereof quash, cancel and set aside the
impugned notice (Exhibit P) dated 28th March, 2019 and
impugned order (Exhibit T) dated 7th November, 2019."
5. Petition disposed accordingly with no order as to costs.
(R.N. LADDHA,J.) (K.R. SHRIRAM, J.)
.....
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