IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION WRIT WRIT WRIT PETITION NO. 2280 OF 2007 PETITION NO. 2280 OF 2007 PETITION NO. 2280 OF 2007 Reclamation Reclamation Reclamation Properties (India) Pvt.Ltd Properties (India) Pvt.Ltd Properties (India) Pvt.Ltd ..Petitioner ..Petitioner ..Petitioner vs vs vs Asst.Commissioner Asst.Commissioner Asst.Commissioner of Income Tax of Income Tax of Income Tax Range Range Range 10 (1) Mumbai & anr .. Respondents 10 (1) Mumbai & anr .. Respondents 10 (1) Mumbai & anr .. Respondents Ms.A.Vissanji Ms.A.Vissanji Ms.A.Vissanji with Mr.S.J.Mehta for Petitioner with Mr.S.J.Mehta for Petitioner with Mr.S.J.Mehta for Petitioner Mr.Vimal Mr.Vimal Mr.Vimal Gupta with Mr.P.S.Sahadevan for Gupta with Mr.P.S.Sahadevan for Gupta with Mr.P.S.Sahadevan for Respondents Respondents Respondents CORAM CORAM CORAM : F.I.REBELLO AND : F.I.REBELLO AND : F.I.REBELLO AND R.S.MOHITE, R.S.MOHITE, R.S.MOHITE, JJ JJ JJ DATED DATED DATED : 4TH DECEMBER, 2007 : 4TH DECEMBER, 2007 : 4TH DECEMBER, 2007 P.C. P.C. P.C. 1.1.1. An order of assessment has already been passed An order of assessment has already been passed An order of assessment has already been passed pursuant pursuant pursuant to the notice issued under section 148 of to the notice issued under section 148 of to the notice issued under section 148 of the the the Income Tax Act. The learned counsel contends Income Tax Act. The learned counsel contends Income Tax Act. The learned counsel contends that that that the said order was passed without considering the said order was passed without considering the said order was passed without considering the the the unreported judgment of this Court in Writ unreported judgment of this Court in Writ unreported judgment of this Court in Writ Petition Petition Petition No.91 of 2007 in the case of Asian Paints No.91 of 2007 in the case of Asian Paints No.91 of 2007 in the case of Asian Paints Ltd Ltd Ltd vs Dy.Commissioner of Income Tax and ors and vs Dy.Commissioner of Income Tax and ors and vs Dy.Commissioner of Income Tax and ors and other other other petitions decided on 29th January 2007. Our petitions decided on 29th January 2007. Our petitions decided on 29th January 2007. Our attention attention attention is invited to the following observations is invited to the following observations is invited to the following observations of of of this Court : this Court : this Court : " We also direct that the I.T.O. concerned We also direct that the I.T.O. concerned We also direct that the I.T.O. concerned shall shall shall follow follow follow the above procedure strictly in the above procedure strictly in the above procedure strictly in all all all such cases of reopening of assessment. such cases of reopening of assessment. such cases of reopening of assessment. " ItItIt is contended that therefore this is the law is contended that therefore this is the law is contended that therefore this is the law declared declared declared by this Court. To constitute the ratio by this Court. To constitute the ratio by this Court. To constitute the ratio decedendi decedendi decedendi of the judgment which a co-ordinate of the judgment which a co-ordinate of the judgment which a co-ordinate Bench Bench Bench must consider the following amongst other must consider the following amongst other must consider the following amongst other considerations considerations considerations must be satisfied: must be satisfied: must be satisfied: a)a) a) The matter must be in issue The matter must be in issue The matter must be in issue b) b) b) The matter requires to be answered. The matter requires to be answered. The matter requires to be answered. c)c) c) It must be answered by reasons It must be answered by reasons It must be answered by reasons The The The issue as to whether the provisions of the issue as to whether the provisions of the issue as to whether the provisions of the Act Act Act and rules require the adjudicating authority and rules require the adjudicating authority and rules require the adjudicating authority generally generally generally to grant time was not in issue. The to grant time was not in issue. The to grant time was not in issue. The issue issue issue arose from the peculiar facts of that case. arose from the peculiar facts of that case. arose from the peculiar facts of that case. That That That is how the ratio of that judgment must be is how the ratio of that judgment must be is how the ratio of that judgment must be understood. understood. understood. In In In the instant case, inspite of the objections the instant case, inspite of the objections the instant case, inspite of the objections raised raised raised by the petitioners, it is contended that by the petitioners, it is contended that by the petitioners, it is contended that though though though an adjournment was sought, the Assessing an adjournment was sought, the Assessing an adjournment was sought, the Assessing Officer Officer Officer proceeded to pass the order. proceeded to pass the order. proceeded to pass the order. Once Once Once an order is passed it is open to the an order is passed it is open to the an order is passed it is open to the petitioners petitioners petitioners herein to challenge the same by herein to challenge the same by herein to challenge the same by appropriate appropriate appropriate proceedings. proceedings. proceedings. It is not the case of the It is not the case of the It is not the case of the petitioners petitioners petitioners that the grounds which are available that the grounds which are available that the grounds which are available cannot cannot cannot be raised by the petitioners before the be raised by the petitioners before the be raised by the petitioners before the appellate appellate appellate authority. authority. authority. Considering Considering Considering the the the above, in our view, this is not above, in our view, this is not above, in our view, this is not a fit case for exercising our extraordinary fit case for exercising our extraordinary fit case for exercising our extraordinary jurisdiction. jurisdiction. jurisdiction. Petition Petition Petition stands rejected. stands rejected. stands rejected. (F.I.Rebello, (F.I.Rebello, (F.I.Rebello, J) J) J) (R.S.Mohite, (R.S.Mohite, (R.S.Mohite, J) J) J)