PRASHANT S. JOSHI Vs. INCOME-TAX OFFICER, MUMBAI

JUDGEMENT

(1.) Rule, by consent made returnable forthwith. Counsel for the respondents waive service. With the consent of counsel, both the petitions are taken up for final hearing.

(2.) The principal challenge in these proceedings is to the notices issued by the first respondent under section 148 of the Income Tax Act, 1961 proposing to assess the income of the petitioner for assessment years 2005-06 and 2006-07 on the ground that there is reason to believe that income chargeable to tax had escaped assessment, within the meaning of section 147. By a deed of Partnership dated 5th May, 2003, the petitioner entered into a partnership with two other persons. The business of the partnership consisted of developing real estate. The petitioner retired from the partnership on 11th March, 2005. Under the Deed of dissolution, the petitioner to the first Writ Petition (W.P. No.2287 of 2009) agreed to receive a sum of Rs.50 lacs, in addition to the balance lying to his credit on the capital and / or current account as reflected in the books of account as on 8th March, 2005 in full and final settlement of his dues on account of retirement. Out of the amount of Rs.50 lacs, the petitioner received an amount of Rs.17 lacs in financial year 2004-05, relevant to the assessment year 2005-06, and Rs.33 lacs in financial year 2005-06 relevant to assessment year 2006-07. The petitioner filed his return of income for assessment year 2005-06 on 31st August, 2005 and for assessment year 2006-07 on 21st July, 2006. Both the returns disclose the amounts received on account of the retirement of the petitioner from the partnership firm and that the amounts, being capital receipts, were not offered to tax.

(3.) In the companion Writ Petition (W.P. No.59 of 2010) as well the petitioner received an amount of Rs.50 lacs in financial years 2004-05 and 2005-06. The petitioner filed his return of income disclosing the amount. The amount was not offered for taxation on the ground that it was a capital receipt.