Milton Plastics Limited Vs. Mudit Nagpal and Ors. - (High Court of Bombay) (13 Mar 2023)

Notice must stipulate that there was a failure on the part of the assessee to disclose fully and truly material facts necessary for its assessment

MANU/MH/0891/2023

Direct Taxation

By present writ petition invoking jurisdiction under Article 226 of the Constitution of India, the Petitioner impugns Notice issued by the Respondent No. 1-Deputy Commissioner of Income Tax, under Section 148 of the Income Tax Act, 1961 alongwith order dismissing the Petitioner's objections to reopening of assessment for the Assessment Year 1997-98.

The Petitioner had disclosed all material facts for the Assessment Year 1997-98 including the transactions now referred to in the impugned notice under Section 148 of the Act. There was thus no foundational fact disclosed in the notice issued by the Respondent No. 1-Deputy Commissioner of Income Tax, to assume jurisdiction to reopen the case of the Petitioner for Assessment Year 1997-98, more so to get over the bar of limitation of four years.

The objections raised by the Petitioner in its reply, that the reasons cited in the notice dated 22nd March, 2004 issued by the Respondent No. 1 that the reopening was based upon a change of opinion without there being any sufficient cause for arriving at that conclusion is justified and correct. The reasons cited for rejection of the objections in the impugned order, namely the reference to the specific transactions of sale and lease back for the Assessment Years 1996-97 and 1997-98 clearly do not constitute material to justify reopening of the assessment.

The notice must stipulate that there was a failure on the part of the assessee to disclose fully and truly material facts necessary for its assessment and discovery of such new material, details of which are required to set out in the notice could be the only material to form the basis for assuming jurisdiction under Section 147 of the Act. In the present case, there is clearly a failure on the part of the Assessing Officer to set out such material that provided the basis for assumption of jurisdiction under Sections 147 and 148 of the Act. Such material not being available in the notice, the impugned notice dated 22nd March, 2004 is clearly without jurisdiction and the same is unsustainable. Consequently, the order rejecting the objections of the Petitioner is also unsustainable. Accordingly, the impugned notice and order impugned in the present case is quashed.

Tags : ASSESSMENT NOTICE LEGALITY