HIGH COURT OF BOMBAY
ICICI Bank Ltd.
V.
Deputy Commissioner of Income-tax
WRIT PETITION NO. 1765 OF 2011
NOVEMBER 9, 2011
JUDGMENT
Dr. D.Y. Chandrachud, J. – Rule, by consent returnable forthwith. With the consent of Counsel and at their request the Petition is taken up for hearing and final disposal.
2. The challenge in these proceedings under Article 226 of the Constitution of India is to a notice issued by the Assessing Officer on 30 March 2010 under Section 148 of the Income Tax Act, 1961 seeking to re-open an assessment for Assessment Year 2003-04.
3. The notice has been issued admittedly after a period of four years from the end of the relevant Assessment Year. The issue which falls for determination before the Court is as to whether, within the meaning of the first proviso to Section 147, there was a failure on the part of the Assessee to “disclose fully and truly all material facts necessary for the assessment for that Assessment Year.” The contention of the Assessee which would need to be considered is that the reasons which have been disclosed for re-opening the assessment ex-facie do not contain any reference to a failure on the part of the Assessee to disclose fully and truly all material facts necessary for the assessment. On the other hand, according to the Revenue, the Assessing Officer was acting within his jurisdiction in purporting to re-open the assessment after the expiry of four years of the end of the relevant Assessment Year.
4. The Petitioner filed its return of income for Assessment Year 2003-04 on 28 November 2003. A revised return of income was thereafter filed on 11 January 2005 and 31 March 2005. The Assessing Officer issued several questionnaires on 3 August 2005, 6 December 2005 and 30 December 2005. The Assessee filed its replies on 18 November 2005, 5 December 2005, 23 December 2005 and 20 January 2006. The Assessing Officer passed an order of assessment on 28 February 2006.
5. During the course of the assessment, the Assessee had made a claim under Section 10(23G) in the total amount of Rs. 124.71 crores. The Assessing Officer allowed the claim to the extent of Rs. 53.80 crores, reducing the deduction as claimed by an amount of Rs. 70.90 crores. The Assessee had also claimed a write off on account of bad debts in the total of an amount of Rs. 1503.06 crores under Section 36(1)(vii) including a write off on fees of Rs. 62.09 crores. The Assessing Officer disallowed the write off on account of bad debts to the extent of Rs. 769.75 crores and allowed the claim in the amount of Rs. 672 crores. The Assessee had filed an Appeal before the CIT (Appeals). The CIT (Appeals), by an order dated 29 September 2010 partly allowed the Appeal of the Assessee by accepting the claim under Section 36(1)(vii) and Section 36(1)(viii) and allowed a proportionate deduction under Section 10(23G) on the basis of the ratio adopted in the earlier Assessment Years.
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