Bombay High Court
Jayant Avinash Dave vs The Assistant Commissioner Of Income ... on 15 January, 2025
Author: M. S. Sonak
Bench: M. S. Sonak
2025:BHC-AS:1729-DB
Revati 12.WP.5087.22.docx
Digitally
SAYYED signed by
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SAEED SAYYED
SAEED ALI
ALI AHMED ALI
Date: CIVIL APPELLATE JURISDICTION
AHMED 2025.01.15
ALI 14:57:24
+0530
WRIT PETITION NO.5087 OF 2022
Jayant Avinash Dave
Age: 66 Years,
Sindoor, Plot No.15,
Serial No.81, Giriraj Society,
Aundh, Pune 411007 ...Petitioner
Versus
1. The Assistant Commissioner of
Income Tax, Circle 5, Pune
Income Tax office, PMT building,
Shankar sheth road, Pune - 411037
2. The Principal Commissioner of
Income Tax-3, Pune
Income Tax, Circle 5, Pune
Income Tax office, PMT building,
Shankar sheth road, Pune - 411037
3. The Additional/Joint/Deputy/
Assistant Commissioner of
Income Tax/Income Tax Officer
National Faceless Assessment Centre,
Through the Principal Chief
Commissioner of Income Tax
(National Faceless Assessment Centre)
Delhi
Room No.401, 2nd floor,
E-Ramp, Jawaharlal Nehru Stadium,
New Delhi - 110003 ...Respondents
_______________________________________________________________
Mr. Mihir Naniwadekar a/w Ms. Rucha Vaidya i/b. Mr. Ruturaj H. Gurjar
for the Petitioner.
Mr. Suresh Kumar for the Respondents.
_______________________________________________________________
CORAM : M. S. Sonak &
Jitendra Jain, JJ.
RESERVED ON : 13 January 2025
PRONOUNCED ON : 15 January 2025
1 of 17
::: Uploaded on - 15/01/2025 ::: Downloaded on - 15/01/2025 22:15:17 :::
Revati 12.WP.5087.22.docx
JUDGMENT (Per Jitendra Jain J):
-
1. Rule. The Rule is made returnable immediately at the request of
and with the consent of the learned counsel for the parties.
2. By this petition, under Article 226 of the Constitution of India,
the petitioner seeks to challenge notice under Section 148 of the Income
Tax Act 1961 (the said Act) for the Assessment Year 2015-16, order
rejecting the objection dated 27 March 2022, an Assessment order and
demand notice both dated 30 March 2022.
Brief facts:
3. The petitioner is an individual regularly assessed to income tax
and deriving income from salary, house property, business, capital gain
and other sources.
4. On 30 September 2015, petitioner filed his return of income for
Assessment year 2015-16 under section 139 of the Act declaring total
income of Rs.69.68 crore which consisted of long-term and short-term
capital gains.
5. On 19 September 2016, petitioner's case was selected for limited
scrutiny by issuing notice under section 143(2) for examining long-term
capital gain. The petitioner responded to the notice and filed return of
income, audit report, financial statements, etc. including working of
long term capital gain and short term capital loss. On 13 December
2017, the assessing officer converted the limited scrutiny to complete
scrutiny after taking prior approval from Principal Commissioner Of
2 of 17
Revati 12.WP.5087.22.docx
Income Tax, Pune to more particularly examine the transaction of sale
and purchase of shares resulting into capital gain.
6. On 29 December 2017, an assessment order under section 143(3)
of the Act came to be passed assessing income about Rs.72.84 crore. In
the assessment order, addition/ disallowance was made on account of
deemed rent, disallowance of commission, profit from sale of shares,
withdrawal of long term capital gain, etc.
7. The petitioner challenged the assessment order by filing an
appeal before the Commissioner of Income Tax (Appeals), who vide
order dated 19 November 2018 gave partial relief. The order of the
Commissioner (Appeal) was challenged by the petitioner and the
respondents before the Income Tax Appellate Tribunal.
8. While the appeal before the Appellate Tribunal was pending, the
respondents issued a notice dated 23 March 2021 under section 148 of
the Act proposing to reassess the income for the Assessment Year 2015-
16. The petitioner filed his return of income in response to the said
notice on 1 April 2021 and also requested for reasons recorded for the
issue of the notice.
9. The Assessing Officer without furnishing reasons recorded for
reopening the case, issued notice under Section 142(1) dated 26
November 2021 seeking various details. The petitioner in response to
the said notice under section 142(1) once again reiterated his request to
provide the reasons for issuing notice under Section 148 of the Act. In
3 of 17
Revati 12.WP.5087.22.docx
spite of the second request, the Assessing Officer issued notice under
Section 143(2) dated 4 March 2022 for proceeding with assessment
proceedings. For the third time, the petitioner in response to the notice
under section 143(2) requested for reasons for issue of notice under
Section 148 of the Act.
10. On 11 March 2022 i.e. after almost close to one year from the
date of issue of notice under Section 148, and after repeated reminders
and at the fag end of the assessment getting time barred, the Assessing
Officer provided reasons for reopening, which reads as under:
Reason:
1. Brief of the assessee:-
The assessee JAYANT AVINASH DAVE is an Individual having
PAN - AAQPD6875J falls within the jurisdiction of Circle - 5,
Pune. On verification of this office records it is noticed that the
assessee has filed its return of income for the Assessment Year
2015-16, with total income of Rs. 69,68,33,360/-. The assessment
u/s 143(3) of the I.T. Act was completed on 29.12.2017 by
assessing income at Rs. 72,84,98,920/-.
Brief details of information collected / received by the AO:-
While going through the case records it is seen that assessee has
claimed set off of Short Term Capital Loss of Rs. 13,58,86,715/-
against the Long Term Capital Gain which was taxable @ 20%.
This case was converted into Complete Scrutiny as per the
approval taken by A.O. from PCIT. In the order u/s 143(3), A.O.
treated Long Term Capital Gain as business income but allowed
Short Term Capital loss of Rs. 13,18,27,767/- to be set off. On
going through the records, it is seen that the assessee has carried
out Purchase and Sale of large quantity of shares of HCL
Technology, Persistent Systems and Tech Mahindra in the month
of March 2015. In all these Shares, companies had declared 1:1
Bonus and Shares were purchased about 8-10 days before the
record date and sold within one week from the record date.
The details of these transactions are tabulated in table no. 1:-
4 of 17
Revati 12.WP.5087.22.docx
Sr. Name of the No. of Record date Date of Cost of Date of Net Sale Capital
No. Company Shares for bonus Acquisition Acquisition transfer considerati Gain/Loss
shares has on
been taken (in Rs.) (in Rs.)
from money (in Rs.)
control.com
Date of
Bonus &
Ratio of
Bonus shares
allowed
20/03/2015
1. Tech Mahindra 13,432 1:1 09.03.2015 19356430 25.03.2015 8836528 -10519902
20/03/2015
2. Tech Mahindra 16,942 1:1 11.03.2015 24466130 25.03.2015 11145656 -13320474
20/03/2015
3. Tech Mahindra 25,000 1:1 11.03.2015 36102777 26.03.2015 16467505 -19635272
20/03/2015
4. HCL 43,755 1:1 09.03.2015 89199991 24.03.2015 42772914 -46427077
Technologies
20/03/2015
5. HCL 14,890 1:1 11.03.2015 30691839 24.03.2015 14555792 -16136047
Technologies
11/03/2015
6. Persistent 26,700 1:1 09.03.2015 50133327 18.03.2015 20580036 -29553291
System
Total 249950494 114358431 -135592063
From the above, it is clear that assessee has created a Short Term
Capital Loss within a span of two weeks with a view to reduce its
tax liability by setting off against Long Term Capital Gain which
was taxable @ 20% and bonus shares held for one year and could
be sold there after by showing Long Term Capital Gain without
paying any taxes. These facts clearly shows that the large scale
purchase and sale of shares during March 2015 have been carried
out only with a view to create Short Term Capital Loss during
F.Y.2015-16 to avoid payment of taxes on the entire Long Term
5 of 17
Revati 12.WP.5087.22.docx
Capital Gain. Supreme Court case of "McDowell And Co. Vs CTO
154 ITR148 (SC)" is clearly applicable to the facts of this case.
The Apex Court has held that colorable devices cannot be
permitted to be part of tax planning and it is wrong to encourage
or entertain the belief that payment of tax can be avoided by
resorting to dubious methods.
In view of the above, Short Term Capital Loss of Rs.
13,18,27,767/- should have been disallowed. Thus resulted in
under assessment of income by Rs. 13,18,27,767/-.
3. Analysis of information collected/received:-
On going through the case records it is clear that the assessee has
created a Short Term Capital Loss within a span of two weeks
with a view to reduce its tax liability by setting off against Long
Term Capital Gain which was taxable @ 20% and bonus shares
held for one year and could be sold there after by showing Long
Term Capital Gain without paying any taxes. These facts clearly
shows that the large scale purchase and sale of shares during
March 2015 have been carried out only with a view to create
Short Term Capital Loss during F.Y.2015-16 to avoid payment of
taxes on the entire Long Term Capital Gain. Supreme Court case
of "McDowell And Co. Vs CTO 154 ITR148 (SC)" is clearly
applicable to the facts of this case. The Apex Court has held that
colorable devices cannot be permitted to be part of tax planning
and it is wrong to encourage or entertain the belief that payment
of tax can be avoided by resorting to dubious methods.
In view of the above, Short Term Capital Loss of Rs.
13,18,27,767/- should have been disallowed. Thus resulted in
under assessment of income by Rs. 13,18,27,767/-.
4. Enquiries made by the AO as sequel to information
collected/received:-
This office has perused the details available on record and found
that the assessee has created a Short Term Capital Loss within a
span of two weeks with a view to reduce its tax liability by setting
off against Long Term Capital Gain which was taxable @ 20%
and bonus shares held for one year and could be sold there after
by showing Long Term Capital Gain without paying any taxes.
These facts clearly shows that the large scale purchase and sale of
shares during March 2015 have been carried out only with a view
to create Short Term Capital Loss during F.Y.2015-16 to avoid
payment of taxes on the entire Long Term Capital Gain. Supreme
Court case of "McDowell And Co. Vs CTO 154 ITR148 (SC)" is
clearly applicable to the facts of this case. The Apex Court has
6 of 17
Revati 12.WP.5087.22.docx
held that colorable devices cannot be permitted to be part of tax
planning and it is wrong to encourage or entertain the belief that
payment of tax can be avoided by resorting to dubious methods.
Thus, Short Term Capital Loss of Rs. 13,18,27,767/- to be
disallowed and added back to the total income. Thus resulted in
under assessment of income by Rs. 13,18,27,767/-.
5. Findings of the AO:-
The office of the undersigned perused the details available on
record and found that the assessee has created a Short Term
Capital Loss within a span of two weeks with a view to reduce its
tax liability by setting off against Long Term Capital Gain which
was taxable @ 20% and bonus shares held for one year and could
be sold there after by showing Long Term Capital Gain without
paying any taxes. These facts clearly shows that the large scale
purchase and sale of shares during March 2015 have been carried
out only with a view to create Short Term Capital Loss during
F.Y.2015-16 to avoid payment of taxes on the entire Long Term
Capital Gain. Supreme Court case of "McDowell And Co. Vs CTO
154 ITR148 (SC) is clearly applicable to the facts of this case. The
Apex Court has held that colorable devices cannot be permitted
to be part of tax planning and it is wrong to encourage or
entertain the belief that payment of tax can be avoided by
resorting to dubious methods.
Thus, Short Term Capital Loss of Rs. 13,18,27,767/- to be
disallowed and added back to the total income. Thus resulted in
under assessment of income by Rs. 13,18,27,767/-.
6. Basis of forming reason to believe and details of escapement of
income:-
In view of the above para No. 2, 3, 4 and 5 and information
available on the record of this office, I have reason to believe that
the income chargeable to tax to the extent of Rs. 13,18,27,767/-
is escaped income for A. Y. 2015-16. I am, therefore, satisfied that
it is a fit case for initiating the proceedings u/s 147 or the Income
Tax Act, 1961 to assess above discussed income and to assess any
other income which may come to the notice during the
assessment proceedings u/s 147 of the Income Tax Act, 1961.
7. Escapement of income chargeable to tax in relation to any
assets (including financial interest in any entity) located outside
India:- N.A.
8. Findings of the AO on true and full disclosure of the material
facts necessary for assessment under Proviso to section 147:
As discussed in para 2 to 6, it is proved that the failure was on
7 of 17
Revati 12.WP.5087.22.docx
the part of the assessee in disclosing fully and truly all material
facts before the AO which was necessary for the relevant
assessment.
Therefore, the income of the assessee chargeable to tax to the
extent at Rs.13,18,27,767/- has been escaped assessment as per
information gathered for the A.Y. 2015-16.
9. Applicability of the provisions of section 147 / 151 to the facts
of the case:-
In this case, a return of income was filed for the year under
consideration and regular assessment u/s 143(3) was made on
29.12.2017 by assessing income at Rs. 72,84,98,920/-. Since 4
years from the end of the relevant year have expired in this case,
the requirements to initiate proceeding u/s 147 of the Act are
reason to believe that income for the year under consideration
has escaped assessment because of failure on the part of the
assessee to disclose fully and truly all material facts necessary for
its assessment for the assessment year under consideration i.e. A.
Y 2015-16.
It is pertinent to mention here that reasons to believe that income
has escaped assessment for the year under consideration have
been recorded above (refer paragraphs 2 to 6). I have carefully
considered the assessment records containing the submissions
made by the assessee in response to various notices issued during
the assessment proceedings and have noted that the assessee has
not fully and truly disclosed the above mentioned material facts,
necessary for its assessment for the year under consideration.
It is evident from the above facts that the assessee had not truly
and fully disclosed material facts necessary for its assessment for
the year under consideration thereby necessitating reopening u/s
147 of the Act.
It is true that the assessee has filed a copy of annual report and
audited P & L A/c and balance sheet along with return of income
where various information/material were disclosed. However, the
requisite full and true disclosure of all material facts necessary for
assessment has not been made as noted above. It is pertinent to
mention here that even though the assessee has produced books
of accounts, annual report, audited P & L A/c and balance sheet
or other evidence as mentioned above, the requisite material facts
as noted above in the reasons for reopening were embedded in
such a manner that material evidence could not be discovered by
the AO and could have been discovered with due diligence,
accordingly attracting provisions of Explanation 1 of section 147
8 of 17
Revati 12.WP.5087.22.docx
of the Act.
It is important to highlight here that material facts relevant for
the assessment on the issues under consideration were not filed
and disclosed during the course of assessment proceeding and the
same may be embedded in annual report, audited P&L A/c,
balance sheet and books of account in such a manner that it
would require due diligence by the AO to extract these
information. For aforesaid reasons, it is not a case of change of
opinion by the AO.
(emphasis supplied)
11. On 22 March 2022, the Assessing Officer issued draft assessment
order proposing to assess income at Rs.86.03 crore by disallowing short-
term capital loss of Rs.13.18 crore.
12. On 24 March 2022, the petitioner filed his objection to reopening
and requested to drop the re-assessment proceedings on the ground
more particularly set out therein.
13. On 25 March 2022 petitioner also filed his reply to the draft
assessment order and requested the Assessing Officer not to proceed
with the assessment till the objections to reopening the case are
decided.
14. On 27 March 2022, the Assessing Officer passed a brief one page
order rejecting the objections filed by the petitioner and immediately
thereafter within three days on 30 March 2022 passed the impugned
order assessing income at Rs.86.03 Crores.
15. Mr. Naniwadekar, learned counsel for the petitioner submits that
the reasons recorded do not disclose what were material facts which the
petitioner failed to disclose so as to satisfy the conditions provided
9 of 17
Revati 12.WP.5087.22.docx
under first proviso to Section 147 of the Act. Mr. Naniwadekar further
submitted that the Assessing Officer furnished the reasons recorded at
the fag end of the assessment getting time barred and thereafter, within
3 days passed the impugned assessment order which is contrary to
various decisions of this Court. Mr. Naniwadekar further submitted that
all the facts were disclosed in the assessment proceedings, and same has
been admitted in the reasons recorded for reopening the case and
therefore, the conditions prescribed in the first proviso to section 147
are not satisfied for reopening the case.
16. Mr. Naniwadekar further submits that Explanation I to Section
147 relied upon by the respondents is not applicable to the facts of the
present case and therefore, the impugned proceedings are without
jurisdiction.
17. Mr. Naniwadekar in support of his various submissions relied
upon the following decisions:
(i) Hindustan Lever Ltd. Vs. R.B.Wadkar, Assistant Commissioner
of Income Tax and Ors. 1
(ii) Bombay Stock Exchange Ltd. Vs Deputy Director of Income
Tax2
(iii) Aroni Commercials Ltd. Vs Deputy Commissioner of Income
Tax 2(1)3
(iv) Ananta Landmark (P.) Ltd. Vs Deputy Commissioner of
Income-tax, Central Circle 5(3), Mumbai4
1 (2004) 268 ITR 332 (Bom).
2 (2014) 52 taxmann.com 29 (bombay)
3 (2014) 44 taxmann.com 304 (bombay)
4 (2021) 131 taxmann.com 52 (bombay)
10 of 17
Revati 12.WP.5087.22.docx
(v) Imperial Consultants and Securities Ltd. Vs Deputy
Commissioner of Income Tax5
18. Mr. Suresh Kumar, learned Counsel for the respondents
vehemently opposed the submissions made by the petitioner and placed
heavy reliance on Explanation-I to Section 147 of the Act to justify the
reopening. The learned Counsel for the respondents did not make any
other submissions except what is recorded herein.
19. We have heard Mr. Naniwadekar, learned counsel for the
petitioner and Mr. Suresh Kumar for the respondents and with their
assistance have perused the documents which were brought to the
notice.
20. There is no dispute that in this case an order under Section
143(3) of the Act was passed on 29 December 2017 and the impugned
notice under Section 148 of the Act has been issued on 23 March 2021
which is beyond a period of four years from the end of the assessment
year 2015-2016. Therefore, proviso to Section 147 of the Act as it exists
is applicable and which reads as under :-
147. Income escaping assessment. If the Assessing Officer has
reason to believe that any income chargeable to tax has escaped
assessment" for any assessment year, he may", subject to the
provisions of sections 148 to 153, assess or reassess" such" income
"and also any other income chargeable to tax which has escaped
assessment and which comes to his notice subsequently in the
course of the proceedings" under this section, or recompute the loss
or the depreciation allowance or any other allowance, as the case
may be, for the assessment year concerned (hereafter in this
section and in sections 148 to 153 referred to as the relevant
assessment year):
5 (2024) 169 taxmann.com 587 (bombay)
11 of 17
Revati 12.WP.5087.22.docx
"Provided that where an assessment under sub-section (3) of
section 143 or this section has been made for the relevant
assessment year, no action shall be taken under this section after
the expiry of four years from the end of the relevant assessment
year, unless any income chargeable to tax has escaped assessment
for such assessment year by reason of the failure on the part of the
assessee to make a return under section 139 or in response to a
notice issued under sub-section (1) of section 142 or section 148 or
to disclose fully and truly all material facts necessary for his
assessment, for that assessment year:"
Explanation 1. Production before the Assessing Officer of account
books or other vidence from which material evidence could with
due diligence have been discovered by the Assessing Officer will
not necessarily amount to disclosure within the meaning of the
foregoing proviso.
21. As per the first proviso to section 147 of the Act an assessment
made under Section 143(3) of the Act can be reopened after the expiry
of four years only if there is a failure on the part of the assessee to
disclose fully and truly all material facts necessary for his assessment.
22. In the instant case before us, on a perusal of the reasons
recorded, there is no allegation as to what are the material facts which
the petitioner failed to disclose at the time of his assessment. Mere
reproducing the wordings of the proviso does not satisfy the
jurisdictional condition which the Assessing Officer is required to satisfy
prior to reopening the case. Having said so, the reasons themselves
record that the same is based on the case records of the petitioner. This
statement is appearing in paragraphs 1 to 6 of the reasons recorded.
Therefore, if based on these case records which case records are filed by
the petitioner- assessee during the course of the assessment proceedings
and are forming part of the assessment records, if a reopening is sought
to be done after a period of four years then that would be wholly
12 of 17
Revati 12.WP.5087.22.docx
without jurisdiction in the absence of satisfaction of the condition
prescribed in first proviso to Section 147 of the Act. The reasons
recorded clearly proves that condition as per first proviso are not
satisfied.
23. In the reasons recorded there is no mention as to what are the
material facts which the petitioner-assessee ought to have disclosed and
which came to the notice of the Assessing Officer post the assessment
order from any source outside the assessment records. The Co-ordinate
Bench of this Court in the case of Hindustan Lever Ltd. (supra) have
observed that the reasons should disclose as to which fact or material
was not disclosed by the assessee fully which was necessary for
assessment so as to establish the vital link between the reasons and
evidence. Mere mentioning that there was a failure to disclose fully and
truly material facts does not confer jurisdiction on the Assessing Officer
to reopen the case after the expiry of four years. In our view,
considering the facts of the present case, the ratio laid down by the Co-
ordinate bench in the case of Hindustan Lever Ltd. (supra) squarely
applies and, therefore, the impugned proceedings are wholly without
jurisdiction.
24. It is also important to note that the original assessment of the
petitioner was selected for limited scrutiny which was converted into
complete scrutiny to examine the transactions of capital gains. The
petitioner in the course of the assessment proceedings gave the details
13 of 17
Revati 12.WP.5087.22.docx
of long term capital gain and short term capital loss including the date
of acquisition and date of transfer. The petitioner also gave details of
loss on transfer of mutual funds. It is only after examining all the details
relating to capital gain and capital loss that an assessment order came
to be passed under Section 143 of the Act. In our view, based on these
very details, the present proceedings have been initiated which is
impermissible since it does not satisfy the pre-condition prescribed
under the first proviso to Section 147 of the Act, it would amount to
review of the assessment order which is not permissible.
25. Reliance placed by the Respondents on Explanation 1 is
misconceived in the light of decision of the Co-ordinate Bench in the
case of Imperial Consultants and Securities Ltd. (supra) , wherein Co-
ordinate Bench had an occasion to examine this very argument made
and the Co-ordinate Bench observed as under:-
"45. Now coming to Mr. Suresh Kumar's contentions, we do not
find ourselves in agreement with Mr. Suresh Kumar relying on
"Explanation 1" below Section 147. We fail to understand as to how
Explanation 1 would in any manner dilute and/or dispense with
the rigors of the specific compliance of the first proviso, when the
assessment is being reopened after a period of four years.
Explanation 1 merely explains that production before the Assessing
Officer of account books or other evidence from which material
evidence could with due diligence have been discovered by the
Assessing Officer will not necessarily amount to disclosure within
the meaning of the preceding proviso. We may observe that this is
certainly not a case where on the materials which are already
produced before the Assessing Officer, the Assessing Officer has
gathered or discovered further material evidence so as to construe
that there was failure on the part of the assessee to make a
disclosure of such materials. Moreover, there is no further tangible
material which has been gathered on due diligence from the
existing material and hence it is quite futile for the respondents to
take recourse to this provision."
14 of 17
Revati 12.WP.5087.22.docx
26. Reliance placed by the respondent-revenue on Explanation 1 of
Section 147 is not applicable to the facts of the present case. In the
instant case, the Assessing Officer in the course of the regular
assessment proceedings examined the issue of capital gain and the
petitioner-assessee filed all the details relating to long term capital
gain/loss and short term capital gain/capital loss. It was after
considering these details, the assessing officer in order under Section
143(3) of the Act made additional/disallowance on account of capital
gain. This is evident from the submissions filed before the assessing
officer and the decision in the assessment order. Therefore, on these
facts placing reliance on Explanation 1 of Section 147 by the
respondent-Revenue is wholly mis-conceived.
27. It is also important to note that the petitioner had raised various
objections to the reasons furnished for re-opening the case. In the order
rejecting the objection none has been rebutted. In our view, even on
these grounds the present proceeding is required to be quashed in the
absence of any rebuttal in the order rejecting the rejection.
28. We also note that request for reasons recorded to be furnished
was made by the petitioner on 1 April 2021, and thereafter reiterated
subsequently vide letters dated 26 November 2021 and 11 March 2022
and in spite of repeated reminders, the Assessing Officer furnished the
reasons recorded at the fag end of the assessment getting time barred
which is 11 March 2022 i.e., after almost when a period of one year was
15 of 17
Revati 12.WP.5087.22.docx
to get over. There is no reason mentioned as to why the Assessing
Officer did not furnish the reasons to the petitioner immediately on the
petitioner filing his return of income and making requests for the same
on 1 April 2021 moreso, when the reasons have to be recorded before
issuing the notice under Section 148 which was dated 23 March 2021.
The object of furnishing the reasons is to give adequate opportunity to
the assessee to file his objections and thereafter give sufficient time to
the Assessing Officer to decide the objections before proceeding with
the assessment proceedings. In this case, the decision making process
adopted by the Assessing Officer is found to be unfair and unreasonable
since the reasons recorded were furnished after repeated request only at
the fag end of the assessment proceedings getting time barred. The
petitioner objected to the reasons vide letter dated 24 March 2022 and
the Assessing Officer without deciding the objections proposed a draft
assessment order even before the same. On 27 March 2022, the order
rejecting the objection was passed and thereafter immediately within
three days an assessment order on 30 March 2022 was passed. In our
view, the action of the Assessing Officer to furnish the reasons recorded
at the fag end and thereafter to complete the assessment proceedings in
haste without following the due process of law and decisions of this
Court on time frame for furnishing the reasons deciding the objections
and passing the assessment order is unconstitutional and therefore even
on this count, the impugned proceedings and the decision making
16 of 17
Revati 12.WP.5087.22.docx
process is bad in law.
29. In view of above, the Rule is made absolute in terms of prayer
clause (b) which reads as under :-
"(b) Issue a writ of Certiorari or a writ in the nature of Certiorari or any
other appropriate writ, order or direction, quashing the Impugned
Reopening Notice dated 23 March 2021 (Exhibit A), Impugned Order on
objections dated 27 March 2022 (Exhibit B), Impugned Assessment
Order dated 30 March 2022 (Exhibit C) and Impugned Demand Notice
dated 30 March 2022 (Exhibit D);
(Jitendra Jain, J.) (M. S. Sonak, J.)
17 of 17
