PRASHANT M. TIMBLO Vs. CHIEF COMMISSIONER OF INCOME
LAWS(BOM)-2017-7-376
HIGH COURT OF BOMBAY
Decided on July 25,2017

Prashant M. Timblo Appellant
VERSUS
Chief Commissioner Of Income Respondents

JUDGEMENT

F.M. Reis, J. - (1.) Heard Mr. J. Mistry, learned Senior Counsel appearing for the petitioner and Ms. Susan Linhares, learned Counsel appearing for the respondents No. 1 to 4.
(2.) The petitioner in the above petitions prays for a writ of certiorari or any other writ or appropriate orders, to set aside the Notices dated 28th March, 2012 and 29th March, 2012 and also to quash and set side the impugned Order dated 27/9/2013.
(3.) It is the case of the petitioner that the petitioner is a citizen of Canada from 1992 and a permanent resident of Dubai, since 2001 and he is a Non-Resident Indian. Under the Income Tax Act, 1961 ("Act" for short) for the Assessment Year 2005-06, the petitioner is entitled to the benefit of the Double Tax Avoidance Agreement (DTAA) between India and UAE. The respondent No. 3 issued the impugned Notice under Section 148 of the said Act dated 28/3/2012. The petitioner challenged the validity of the said notice whereby the respondent No. 3 has proposed to reopen the assessment of the petitioner for the Assessment Year 2005-06 as the respondent No. 3 is of the belief that the petitioner's income chargeable to tax has escaped assessment. It is the contention of the petitioner that respondent No. 3 has no jurisdiction to issue such notice and that it is well settled law that before proceeding to issue such notice under Section 148 of the said Act, certain conditions, including the condition of assuming proper jurisdiction has to be satisfied. It is further contention of the petitioner that as such, the petitioner is governed by the Authority located in Goa. The petitioner also contends that on 26/7/2005, the petitioner filed his return of income for the Assessment Year 2005-06 with the Asst. Commissioner of Income-tax, declaring a total income of Rs.55,37,400/-. The returns of the petitioner were processed under Section 143(1)(a) by the Asst. Commissioner of Income-tax and thereafter, issued a notice calling upon the petitioner to explain the difference in interest income shown in the returns. The petitioner, who appeared before the Assistant Commissioner of Income-tax was, thereafter, asked to file copies of his passport and a computation of the number of days he was abroad, in addition to the interest reconciliation was carried out. Table giving total number of days spent by him outside the Country was submitted by the petitioner. In the meanwhile, the Asst. Commissioner of Income-tax, issued another show cause notice under Section 143(2) of the Act, calling upon the petitioner to appear before him on 18/7/2006. Accordingly, necessary details were submitted by the petitioner. Thereafter, by another show cause notice issued under Section 143(2) of the said Act, respondent No. 3 once again called upon the petitioner to appear before him. Subsequently, in view of the change of jurisdiction, an opportunity was given to appear before the respondent No. 4 and an explanation was called for. It is further contended that on 24.12.2007, after thorough investigation and after being satisfied with the explanation given by the petitioner, the assessment of the petitioner was concluded by an order dated 24.12.2007 under Section 143(3) of the said Act, making no addition to the income declared by the petitioner. But, however, on 29/3/2012, the petitioner received a notice under Section 148 of the said Act for escapement of income and more so, from the respondent No. 3. The petitioner responded to the said notice and requested the respondent No. 3 to consider the original returns filed by him on 16/7/2005, as returns in response to the impugned notice and further requested the respondent No. 3 to furnish the reasons for re-opening the assessment. After a lapse of 9 months, the petitioner was surprised to receive a notice under Section 142(1) of the said Act from the respondent No. 3, disclosing reasons recorded and called upon the petitioner to produce copies of his passport and substantiate his claim for the benefit under the DTAA. But, however, no reasons were in fact enclosed along with such notice. Thereafter, the petitioner, through his Chartered Accountant, once again requested the respondent No. 3 to furnish to him the reasons recorded by him prior to issuance of the notice dated 28/2/2013, so as to enable the petitioner to make proper submissions. But, however, the respondent No. 3 called upon the petitioner to reply to the notices dated 8/2/2013 and 28/2/2013, failing which best judgment assessment would be carried out. A writ petition was thereafter filed raising objections to such exercise by the respondent No. 3. But, however, on the date of filing of such petition, reasons were given to the petitioner. Objections were accordingly filed by the Petitioner before the respondent No. 3, challenging the legality of assumption of jurisdiction. The writ petition was disposed of by an order dated 16/9/2013, directing the respondent No. 3 to dispose of the objections filed by the petitioner. Thereafter, by an order dated 27/9/2013, the objections filed by the petitioner were disposed of by the respondent No. 3. Being aggrieved by the notices, as well as the impugned order, the petitioner has filed the present writ petitions.;


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