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TMI Blog2021 (11) TMI 776X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings of Petitioner having incurred advertisement and marketing expenditure, it is not open for the Assessing Officer to reopen the assessment. This Court in Aroni Commercial Limited [ 2014 (2) TMI 659 - BOMBAY HIGH COURT] and in Marico Limited [ 2019 (8) TMI 1337 - BOMBAY HIGH COURT] had taken a similar view. The pronouncements of the coordinate Bench of this Court are binding on us. Reopening beyond period of four years - The criteria s for reopening of assessment after a period of 4 years are no longer Res-Integra in view of the judgment of Division Bench of this Court in the case of Ananta Landmark (P.) Ltd. [ 2021 (10) TMI 71 - BOMBAY HIGH COURT] wherein this Court held that where assessment was not sought to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... similar background of facts. They have been heard together and disposed by this common judgment. We note primary facts from Writ Petition No. 3263 of 2019. 3. Petitioner has invoked the power of this Court under Article 226 of the Constitution of India by challenging notice dated 29/3/2019 issued by respondent No.1 under section 148 of the Income-tax Act, 1961 (said Act, for the sake of brevity) seeking to reopen the assessment for the Assessment Year 2012-2013 and consequential order dated 25/9/2019 passed by respondent No.2 disposing of all objections of Petitioner. 4. Petitioner is a private limited company engaged in the business of selling hair care products, providing consultancy services, treatment in the hair care and beauty s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reason was that advertisement and marketing expenditure incurred by Petitioner was not deductible in view of provisions of Section 37 of the said Act, as Petitioner was prohibited from advertising under the provisions of the Indian Medical Council Act, 1956 read with Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 (the Regulations, for the sake of brevity). On 25/9/2019, respondent No.2 passed an order rejecting the objections of Petitioner. Section 37 (1) of the Act provides any expenditure incurred for a purpose which is an offence or which is prohibited by law shall not be allowed. 7. Petitioner has therefore filed the present writ petition challenging the notice dated 29/3/2019 issued under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d escaped assessment. The bar under the said Regulation, 2002 is attracted only to restrict a registered medical practitioner. Petitioner being a company, such bar is not attracted. 11. Per contra Mr. Akhileshwar Sharma for Respondent submitted that advertisement expenses were disclosed under the head other sources in the original assessment. Petitioner has not disclosed the nature of expenses and their connection to the business. He submitted that the Assessing Officer subsequently ascertained from the site of Petitioner that Petitioner is soliciting patients, prohibited as per Regulation of 2002. He, therefore, submitted that Petitioner would get an opportunity to make out the case before the Assessing Officer, and there is no need to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of Income Tax (2021) 131 taxmann.com 52 (Bombay) wherein this Court held that where assessment was not sought to be reopened on reasonable belief that income had escaped assessment on account of failure of assessee to disclose truly and fully all material facts that were necessary for computation of income but was a case wherein assessment was sought to be reopened on account of change of opinion of Assessing Officer about manner of computation of deduction under Section 57, reopening was not justified. It is also held that when the primary facts necessary for assessment are fully and truly disclosed, the Assessing Officer is not entitled to a change of opinion for commencing proceedings for reassessment. It is also held that when on co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ann.com 53 had taken a similar view. The pronouncements of the coordinate Bench of this Court are binding on us. 16. We are therefore satisfied that the Assessing Officer could not have reopened the assessment merely on the basis of change of opinion and could not have issued a notice of reopening of assessment to Petitioner. 17. Since we are setting aside notices on the ground of change of opinion, it is unnecessary to go into other contentions raised by Petitioner, which are kept open to be adjudicated in appropriate proceedings. We, therefore, pass following order: ORDER Notice dated 29/3/2019 issued by respondent No.1 (Exhibit F) and consequential order dated 25/9/2019 (Exhibit K) in Writ Petition No.3263/2019, Notice ..... X X X X Extracts X X X X X X X X Extracts X X X X
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