Vinod Bhagwan Wadhwani v. Deputy Commissioner Of Income Tax-Circle 3, Thane And ORS

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 783 OF 2022 Digitally signed by SHRADDHA KAMLESH TALEKAR Date:

2022.03.09 12:04:40 +0530 SHRADDHA KAMLESH TALEKAR Vinod Bhagwan Wadhwani

...Petitioner

vs.

1. Deputy Commissioner of Income Tax-Circle-3, Thane & 3 Ors.

...Respondents

***** Mr.Devendra Hastimal Jain for petitioner.

Mr.Ashok Kotangle a/w. Mr. P.A. Narayanan, Mr.Vipul Arun Bajpayee and Mr.Venkatesh Anchan for respondents-revenue. CORAM : K.R. SHRIRAM & N. J. JAMADAR, JJ.

DATE : 8th MARCH, 2022 P.C.:

1.

On 6th December 2021, the following order came to be passed in Writ Petition (OS) No. 2763 of 2019 for the assessment year 2012-13 :

"1 Paragraph 6 of the order dated 13th January 2020 reads as under:

"

The cases arising under this jurisdiction would generally turn on the combination of facts of each case. It is not being argued before us that because of there was only an intimation under Section 143(1) of the Act, the jurisdictional requirement under Section 147 of the Act need not be present. We have perused the reasons in this case and the objections fled by the Petitioner giving explanation and creditworthiness of the Petitioner. The order passed by the Respondent No.1 - Assessing 1/4

Offcer disposing of the objections, do not show application of mind qua the objections raised by the Petitioner. Firstly there is a reference to fact that there was no scrutiny assessment, then the objection of the Petitioner on law regarding jurisdiction is commented on then it is stated that earlier no documents could be examined because it is the case of intimation under Section 143(1) of the Act, then the Assessing Offcer reproduced the paragraphs regarding what is meant by "reasons to believe" and passed the order. In view of the fact that there is absolutely no application of mind whatsoever while disposing of the objections to the factual errors and factual aspects pointed out by the Petitioner, we fnd that arguable case is made out."

We have once again perused the order disposing the objections and echo the observations as quoted above. In fact, we would add that the order lacks bonafdes. Therefore, the order dated 26th September 2019 is quashed and set aside. The matter is remanded for denovo consideration and it should be placed before an Assessing Offcer, who was not the Assessing Offcer, who passed the order dated 26th September 2019.

Accordingly, petition disposed. Respondents shall inform petitioner within two weeks about the link / communication for the personal hearing. Respondent no.1 may pass such orders as he deems ft but it should be a reasoned order dealing with all submissions of petitioner." (emphasis supplied) 2.

Mr.Kotangale states that the order on objections has been disposed by another Assessing Offcer. Though Mr.Kotangale tried his best to justify the order, when he was confronted with the contents of the order, Mr.Kotantale has to agree that this order 2/4

dated 18th January 2022 purportedly in accordance with the directions passed by this Court also is devoid of reasons. The Offcer has not dealt with the submissions of petitioner on merits. We would add, this order also lacks bonafde.

3.

We, therefore, set aside the order dated 18th January 2022 and remand the matter back, to be listed before the Jurisdictional Assessing Offcer (JAO), who shall pass a reasoned order, after giving a personal hearing to petitioner, notice of which shall be given atleast seven working days, in advance. 4.

If the JAO is going to rely on any order or judgment of any Court or tribunal, a list thereof shall be provided to petitioner along with the notice of personal hearing, so that petitioner can deal with/distinguish those orders/judgments during the personal hearing.

5.

The fresh order on objection shall be passed by the Assessing Offcer, other than the Offcer, who had handled the petitioner's case earlier.

6.

For not complying with our directions in true letter and spirit, we direct the Assessing Offcer, who has passed the impugned order dated 18th January 2022, to pay from his personal account a sum of Rs.10,000/- (Rupees Ten Thousand 3/4

Only) as donation to PM Cares. The details of the account are as under :- Details of Domestic Donation Account Name of Account :

PM CARES Account Number :

2121PM2020 IFSC Code :

SBIN0000691 UPI :

pmcares@sbi State Bank Of India, New Delhi Main Branch 7.

From the affdavit of Ms.Aparna M. Aggarwal, affrmed on 16th February 2022, it appears that one Mr.Mukesh Kumar Solanki, ITO (ReFAC) (AU)-4, Ahmedabad has passed the impugned order, dated 18th January 2022. The said Mr.Mukesh Kumar Solanki shall pay the amount of Rs.10,000/- within two weeks and shall fle an affdavit in compliance thereof, to which should be annexed the Bank Statement of Mr.Mukesh Kumar Solanki to prove that this amount has been paid from his account. This affdavit shall be fled within three weeks from today.

8.

Petition disposed.

9.

Petition be, however, listed on 6th April 2022 for compliance. (N. J. JAMADAR, J.) (K.R. SHRIRAM, J.) 4/4