3 The Petitioner has essentially challenged the impugned notice on two grounds, firstly that the entire income was governed by the principle of mutuality, therefore not taxable and secondly that during passing of the assessment order in regular proceedings on 16 December 2010 under Section 143(3) of the Act all material facts necessary for passing an assessment order were on record before the Assessing Officer and, therefore the impugned notice is without jurisdiction. By our order dated 10 September 2014, we concluded that the income arising on account of advertisement charges, space hire charges, guest fees and catering charges which form basis of the impugned notice, would not be governed by the concept of mutuality as the very basis of mutuality i.e. the identity of contributors and participators, is not satisfied. So far as the second issue is concerned, we were prima facie of the view that no inquiry during original scrutiny proceedings under Section 143(3) of the Act was made in respect of the income arising on account of advertisement charges, space hiring charges, guest fees and catering charges before passing the assessment order dated 16 December 2004 under Section 143(3) of the Act. However, in view of the fact that Top 50 Asien Vs Deputy Director of Income Tax in WP No.1452 of 2012 was admitted on 16 June 2014, on the ground that there appears to be conflict / divergence of views in the decisions rendered by this Court in Asian Paints Ltd. Vs. Deputy Commissioner of Income Tax & Anr, (2009) 308 ITR 195 (Bom) and Export Credit Guarantee Corporation of India Ltd. Vs Additional CIT & Ors in (2013) 350 ITR 651 (Bom). The divergence appeared to be in respect of whether in respect of a notice issued within four years from the end of the relevant assessment years mere furnishing/disclosure of information during the assessment proceedings would bar the Assessing Officer from reopening the assessment or that application of mind for the furnished/ disclosed information by an Assessing Officer would alone bar issuing of reopening notice. Therefore, in the above view, this Petition, though not admitted at that point of time, was placed for hearing along with Top 50 Asian (supra) .
