Bombay High Court
Icici Bank Ltd vs Deputy Commissioner Of Income ... on 11 February, 2025
Author: M. S. Sonak
Bench: M. S. Sonak
2025:BHC-OS:2249-DB
Digitally
signed by Revati 2.WP.1172.22.docx
SAYYED SAYYED
SAEED SAEED
AHMED
ALI
ALI ALI
AHMED Date:
ALI 2025.02.12 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
16:57:26
+0530
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1172 OF 2022
ICICI Bank Ltd.
ICICI Bank Towers,
Bandra Kurla Complex,
Bandra (East) Mumbai-400051 ...Petitioner
Versus
1. Deputy Commissioner of Income
Tax-2(3)(1)
having his office at Room No.552,
Aayakar Bhavan, M.Karve Road,
Mumbai-400020
2. Union of India
through Ministry of Law
Aayakar Bhavan, Maharshi Karve Road,
Mumbai-400020 ...Respondents
_____________________________________________________
Ms. Aarti Vissanji a/w Mr. S.J.Mehta for Petitioner.
Mr. Abhishek Mishra for Respondents.
_____________________________________________________
CORAM : M. S. Sonak &
Jitendra Jain, JJ.
DATED : 11 February 2025
ORAL JUDGMENT (Per Jitendra Jain, J.):-
1. Heard learned counsel for the parties.
2. Rule. Rule is made returnable immediately at the request of and
with the consent of learned counsel for the parties.
3. This petition challenges notice under Section 148 of the Income-
tax Act, 1961 (hereinafter referred to as 'the Act') issued by the
respondent No.1 for the assessment year 2014 -15.
4. The reasons for re-opening were furnished to the petitioner on 25
November 2011 and the same reads as under :-
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5. Ms. Vissanji, learned counsel for the petitioner submits that the
impugned notice is issued after a period of 4 years from the end of the
relevant assessment year and in the absence of any allegation of any
failure to disclose fully and truly all material facts necessary for the
assessment, impugned notice is barred by the first proviso to Section
147 of the Act. She further submits that the issue for which the re-
opening is sought was raised in the course of the assessment
proceedings and a reply was filed by the petitioner and same was
considered in the assessment order. Therefore, based on this ground
also the impugned proceedings would amount to change of opinion.
She relied upon the decision in the case of Hindustan Unilever Limited
Vs R.B. Wadkar1 and decision of the co-ordinate bench of this Court in
the petitioner's own case in Writ Petition No.3108 of 2022 dated 31
October 2022 in support of her submission and prayed that the
impugned notice be quashed. She further submits that all the details
were furnished alongwith the return of income in the assessment
proceeding and the same is evident from the reasons recorded itself.
6. Mr. Mishra learned counsel for the respondent defends the
impugned proceedings and submits that the petitioner has mis-
represented in so far as the issue of deduction under Section 36(1)(vii)
is concerned. He therefore submits that there is a failure on the part of
the petitioner to disclose fully and truly all material facts and therefore
the proceedings are valid and same is not hit by the first proviso of
Section 147 of the Act.
7. We have heard learned counsel for the petitioner and respondent
and perused the documents brought to our attention. There is no
dispute that the notice under Section 148 is issued after the expiry of
period of 4 years from the end of the relevant assessment order. As per
1 (2004) 268 ITR 332
Revati 2.WP.1172.22.docx
the first proviso of Section 147 of the Act, re-assessment proceedings
cannot be initiated after period of 4 years from the end of the relevant
assessment year unless there is a failure on the part of the assessee to
disclose fully and truly all material facts necessary for the assessment.
The co-ordinate bench of this Court in the case of Hindustan Unilever
Limited (Supra) has held that there has to be not only the allegation
that there is a failure on the part of the assessee to disclose fully and
truly all material facts but the reasons should also state what are the
material facts which were not disclosed. On a perusal of the reasons
recorded in the present case, we do not find any allegation of any
failure to disclosure fully and truly of material facts necessary in the
assessment. But on the contrary on a perusal of the reasons recorded, it
shows that the information on the basis of which re-opening is sought
was based on the documents filed by the petitioner alongwith the return
of income and in the assessment proceeding. Therefore, on this short
ground itself the impugned proceedings are required to be quashed and
set aside.
8. The learned counsel for the petitioner is justified in relying upon
the decision in its own case in Writ Petition No.3108 of 2022 where on
very similar ground the notice under Section 148 of the Act was
quashed.
9. In any case the assessing officer in the course of the assessment
proceedings had raised a query vide letter dated 1 July 2016 which
reads as under:
Please give details of rural advances --- Please give details of claims of
deduction towards advances given by rural branches of banks and
justify allowability as to whether such branches are eligible to be
treated as a 'rural branch' according to the definition given in
Explanation (ia) to Section 36(1)(viia) of the Income-tax Act, 1961.
Please give population as per 2011 census of place of rural branch, the
total income and Bad debt, provisions of bad debt a/c u/s 36(1)(viia).
Revati 2.WP.1172.22.docx
10. The said query was replied by the petitioner vide letter dated 21
September 2017 and thereafter an assessment order was passed where
the issue relating to Section 36(1)(viia) and 36(1)(vii) was discussed in
para 19 and 20 of the assessment order.
11. In our view, if a query is raised and the assessee files its reply and
the issue form subject matter of the assessment order, there can be no
question of any failure to disclose fully and truly all material facts but
on the contrary allowing the respondents to pursue the present
proceeding would amount to empowering power of review on
respondents which the Act does not provide and which is not
permissible under the Act. Therefore, even on this ground, the
impugned proceedings are required to be quashed and set aside.
12. In view of the above, the Rule is made absolute in terms of prayer
clause (a) which reads as under:
"(a) This Hon'ble Court may be pleased to issue under Article 226 of the
Constitution of India an appropriate direction, order or writ
including a writ in the nature of Certiorari calling for the records of
the case and after satisfying itself as to the legality thereof, quash
and set aside the notice dated 25.03.2021 (Exhibit 'M') issued by
the Respondent No.1 and the order dated 17.01.2022 (Exhibit 'Q')
for the relevant assessment year."
(Jitendra S. Jain, J.) (M. S. Sonak, J.)
