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 ORIGINAL ORIGINAL CIVIL JURISDICTION CIVIL JURISDICTION CIVIL JURISDICTION WRIT WRIT WRIT PETITION NO. 2282 OF 2007 PETITION NO. 2282 OF 2007 PETITION NO. 2282 OF 2007 Reclamation Reclamation Reclamation Realty Realty Realty (India) Ltd.. Appellant (India) Ltd.. Appellant (India) Ltd.. Appellant vs vs vs Asst.Commissioner Asst.Commissioner Asst.Commissioner of of of Income Tax Income Tax Income Tax Range Range Range 10 10 10 (1) Mumbai & anr . Respondents (1) Mumbai & anr . Respondents (1) Mumbai & anr . Respondents Ms.A.Vissanji Ms.A.Vissanji Ms.A.Vissanji with with with Mr.S.J.Mehta for Petitioner Mr.S.J.Mehta for Petitioner Mr.S.J.Mehta for Petitioner Mr.Vimal Mr.Vimal Mr.Vimal Gupta Gupta Gupta withMr.P.S.Sahadevan for withMr.P.S.Sahadevan for withMr.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 the the said order was passed withiout considering said order was passed withiout considering said order was passed withiout considering the the the judgment of this court in an unreported judgment of this court in an unreported judgment of this court in an unreported judgment judgment judgment in in in Writ Petition No.91 of 2007 in the case Writ Petition No.91 of 2007 in the case Writ Petition No.91 of 2007 in the case of of of Asian Paints Ltd vs Dy.Commissioner of Income Asian Paints Ltd vs Dy.Commissioner of Income Asian Paints Ltd vs Dy.Commissioner of Income Tax Tax Tax and ors and other petitions decided on 29th and ors and other petitions decided on 29th and ors and other petitions decided on 29th January January January 2007. Our attention is invited to the 2007. Our attention is invited to the 2007. Our attention is invited to the following following following observations of this Court : observations of this Court : observations of this Court : . " We also direct that the I.T.O. We also direct that the I.T.O. We also direct that the I.T.O. concerned concerned concerned shall follow the above procedure shall follow the above procedure shall follow the above procedure strictly strictly strictly in all such cases of reopening of in all such cases of reopening of in all such cases of reopening of assessment assessment assessment . " . " . " . It is contended that therefore this is the law It is contended that therefore this is the law It 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 decided decided decided of the judgment, the following amonigst of the judgment, the following amonigst of the judgment, the following amonigst other other other considerations must be satisfied: considerations must be satisfied: considerations 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. 2 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 considered. considered. considered. . In the instant case, inspite of the objections In the instant case, inspite of the objections In 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 would would would not be available to the petitioners before not be available to the petitioners before not be available to the petitioners before the the the appropriate authority. appropriate authority. appropriate 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 extra ordinary fit case for exercising our extra ordinary fit case for exercising our extra ordinary jurisdiction. jurisdiction. jurisdiction. Petition Petition Petition stands rejected. stands rejected. stands rejected.