C.b.srinivasan v. The Deputy Commissioner Of Income Taxnon Corporate Circle

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.03.2016 CORAM THE HONOURABLE Mr. JUSTICE M.DURAISWAMY W.P.Nos.1259 and 1260 of 2016 and W.M.P.No.995 of 2016 C.B.Srinivasan [ Petitioner in both WP ] Vs The Deputy Commissioner of Income TaxNon Corporate Circle-163, Race Course RoadCoimbatore 641 018 [Respondent in both WP] Writ Petition No.1259/16 filed under Article 226 of theConstitution of India to issue a Writ of Certiorari to call forthe records relating to Notice under Section 148 of the IncomeTax Act, 1961, issued by the respondent dated 04.12.2015 to thepetitioner, PAN: and quash the same. Writ Petition No.1260/15 filed under Article 226 of theConstitution of India to issue a Writ of Certiorari to call forthe records relating to Communication of the respondent dated22.12.2015 to the petitioner, PAN: and quash the same. For Petitioner : Mr.Niranjan RajagopalanFor Respondent : MrT.Pramodkumar Chopda, Sr.Standing CounselC O M M O N O R D E R The petitioner has filed the writ petition in W.P.No.1259of 2016 to issue a writ of certiorari to call for the recordsrelating to the notice under Section 148 of the Income Tax Act,1961(hereinafter referred to as the Act), issued by therespondent dated 04.12.2015 and to quash the same. Similarly,the petitioner has also filed the writ petition inW.P.No.No.1260 of 15 to issue a Writ of Certiorari to call forthe records relating to Communication of the respondent dated22.12.2015 and to quash the same. 2. Since the issue involved in both the writ petitions iscommon, the writ petitions are disposed of by this common order. https://hcservices.ecourts.gov.in/hcservices/ 3. Heard Mr.Niranjan Rajagopalan, learned counsel for thepetitioner and Mr.T.Pramodkumar Chopda, learned Senior StandingCounsel for the respondent. 4. The learned counsel for the petitioner submitted thatthe proceedings initiated by the respondent is withoutjurisdiction since there is no material which has been disclosedor available with the respondent which enables or warrantsreopening of proceedings under Section 147 of the Act. Further,according to the learned counsel for the petitioner, when areturn was already filed under Section 139 of the Act and noaction under Section 143 of the Act has been taken, question ofinvocation of Section 147 of the Act does not arise. Further,according to the learned counsel for the petitioner, when therespondent has not taken any action on the earlier return filedunder Section 143 (2) of the Act, the present notice issuedunder Section 148 of the Act is not maintainable. Further,according to him, any further proceedings can be initiated onlyon the return filed on 06.12.2013, assuming there is stilljurisdiction and not barred by limitation. 5. Mr.T.Promodkumar Chopda, learned Senior StandingCounsel appearing for the respondent submitted that noticeissued under Section 148 of the Act is perfectly correct and nonotice will be issued under Section 143(2) of the Act for thereturn of income filed under Section 139 of the Act. Further,the learned Senior Standing Counsel submitted that non servingof notice under Section 143(2) cannot be construed as erroneous. 6. On a careful consideration of the materials availableon record and the submissions made by the learned counsel oneither side, as rightly pointed out by the learned SeniorStanding Counsel for the respondent, it could be seen that nonotice will be issued under Section 143(2) of the Act prior tothe issuance of notice under Section 148 of the Act. Only afterfiling of return, pursuant to the notice issued under Section148 of the Act dated 04.12.2015, the question of issuing noticeunder Section 143(2) of the Act will arise. When the petitionerhas not submitted their return pursuant to the notice issuedunder Section 148 of the Act, question of issuing notice underSection 143(2) of the Act, would not arise. 6. On a careful consideration of the materials availableon record and the submissions made by the learned counsel oneither side, as rightly pointed out by the learned SeniorStanding Counsel for the respondent, it could be seen that nonotice will be issued under Section 143(2) of the Act prior tothe issuance of notice under Section 148 of the Act. Only afterfiling of return, pursuant to the notice issued under Section148 of the Act dated 04.12.2015, the question of issuing noticeunder Section 143(2) of the Act will arise. When the petitionerhas not submitted their return pursuant to the notice issuedunder Section 148 of the Act, question of issuing notice underSection 143(2) of the Act, would not arise. 7. Mr.T.Promodkumar Chopda, learned Senior StandingCounsel appearing for the respondent also relied upon a Judgmentof the Hon'ble Supreme Court reported in (2003) 259 ITR 19 (GKNDRIVESHAFTS (INDIA) LTD., vs. INCOME TAX OFFICER AND OTHERS),wherein, the Hon'ble Supreme Court has held as follows:- " We see no justifiable reason tointerfere with the order under challenge.However, we clarify that when a notice under https://hcservices.ecourts.gov.in/hcservices/ Section 148 of the Income-tax Act is issued,the proper course of action for the noticeeis to file a return and if he so desires, toseek reasons for issuing notices. TheAssessing Officer is bound to furnish reasonswith a reasonable time. On receipt ofreasons, the noticee is entitled to fileobjections to issuance of notice and theAssessing Officer is bound to dispose of thesame by passing a speaking order. In theinstant case, as the reasons have beendisclosed in these proceedings, the AssessingOfficer has to dispose of the objections, iffiled, by passing a speaking order, beforeproceeding with the assessment in respect ofthe abovesaid five assessment years". 8. The ratio laid down by the Hon'ble Supreme Court in theJudgment relied upon by the learned Senior Standing Counselappearing for the respondent squarely applies to the facts andcircumstances of the case. 9. In these circumstances, I do not find any merit in thewrit petitions. Accordingly, the writ petitions are liable tobe dismissed and the same are dismissed. No costs. Connectedmiscellaneous petition is also dismissed.rg -s/d- Assistant Registrar(CS-V) True Copy Sub-Assistant Registrar To The Deputy Commissioner of Income TaxNon Corporate Circle-163, Race Course Road Coimbatore 641 018 + 1 cc to M/s.T.Pramodkumar Chopda, Advocate SR 17865mp(co)prk5/5W.P.Nos.1259 and 1260 of 2016