Valmiki Sa Menezes JUDGMENT
Valmiki Sa Menezes, J.
1. By this writ petition invoking our jurisdiction under Article 226 of the Constitution of India, the Petitioner impugns Notice dated 22.03.2004 issued by the Respondent No. 1-Deputy Commissioner of Income Tax, Circle 2(2), Mumbai, under Section 148 of the Income Tax Act, 1961 (hereinafter referred as "the Act") alongwith order dated 04.03.2005 dismissing the Petitioner's objections to reopening of assessment for the Assessment Year 1997-98.
2. Rule. By consent of the parties, Rule is made returnable forthwith and the petition is heard finally.
3. The primary contentions raised in the writ petition are stated as under:
a) That the reopening of assessment, where it has been made under Section 143(3) of the Act, beyond a period of four years from the end of the relevant assessment year would be illegal, if the assessee had disclosed all material facts truly and fully during the previous assessment; that in the facts of the present case, the Assessing Officer had no jurisdiction to reopen the case of assessment for the Assessment Year 1997-98, there being no suppression of any material, all of which was before the Assessing Officer, when previous orders of assessment had been passed.
b) In the light of the fact that all sale and lease back transactions made during the Assessment Year 1996-97, by the Petitioner, and since similar transactions were entered into leasing machinery to third parties during the Assessment Year 1997-98, which were different from the ones transacted in Assessment Year 1996-97, the Assessing Officer had no jurisdiction to reopen the assessment after depreciation allowance claimed by the Petitioner for the relevant assessment year had been examined by the Assessing Officer and had been accepted after scrutiny.
c) That in view of the issuance of notice under Section 142(1) of the Act dated 21.09.1999 by the Deputy Commissioner of Income Tax, Central Circle-11, Mumbai, during Assessment Year 1997-98 and the order of the Income Tax Appellate Tribunal, Mumbai (hereinafter referred as "the Tribunal") dated 26.03.2008, quashing the reopening notice for the Assessment Year 1996-97, there was no jurisdiction vested in the Assessing Officer to proceed with reopening of the assessment for the very same period in the light of the specific findings of the Tribunal therein that reopening was invalid as there was no failure on the part of the assessee to disclose true and full material facts; the Petitioner contends that dismissal of his objections to the reopening of assessment amounts to a change of opinion renders the reopening of assessment invalid.
4. During the course of the hearing, we were of the view that production of communication dated 21.09.1999 issued by the Deputy Commissioner of Income Tax, Central Circle-11, Mumbai, issued to the Petitioner under Section 142(1) of the Act, in connection with assessment proceedings for Assessment Year 1997-98 should be made part of the record, to support the contention that in-fact the issue with regard to the claim of depreciation on the assets purchased from two entities, namely M/s. Gremach CNC Limited and M/s. Technology Plastics Limited, had been enquired into by the then Assessing Officer in a scrutiny proceedings for the assessment year, we directed the revenue to file an affidavit with regard to the authenticity and genuineness of the co........