Cw/3229/2005 Of M/S.sri Ram And Company v. Assistant Commi.of Income-Tax, And Ors

S.B. CIVIL WRIT PETITION NO.3229/2005 Assistant Commissioner of Income Tax Circle-II, Bikaner andothers. Date : 12.7.2005 HON'BLE MR. PRAKASH TATIA, J. Mr. Suresh Ojha, for the petitioner. Heard learned counsel for the petitioner. Brief facts of the case are that the petitionersubmitted return for assessment of his income on31.10.2002. The order for assessment was passed underSection 143(1) of the Income Tax Act, 1961 (for short “theAct”) on 31.3.2003 by the assessing authority, copy ofwhich is placed on record as Annex.2. The petitionerthereafter was served with a notice under Sections 154/155of the Act which is dated 8.7.2003, copy of which is placedon record as Annex.3. The petitioner submitted reply to thesaid notice on 26.8.2003. The petitioner thereafter hasbeen served with notice under Section 148 of the Act whichis dated 7.12.2004, copy of which is placed on record asAnnex.6. Before this, the reasons for issuing notice underSection 148 of the Act have been recorded by the assessingauthority which is apparent from the reasons given by theassessing authority and supplied to the petitioner, copy ofwhich is placed on record as Annex.7. According to learned counsel for the petitioner, theassessing authority failed to initiate proceedings forscrutiny of case of the petitioner as permissible under theprovisions of Section 143 of the Act itself within theprescribed time limit and, therefore, to overcome thatdifficulty of not initiating the proceedings for scrutinyof the petitioner's case, the assessing authority hasissued notice under Section 148 of the Act. It is alsosubmitted that the reasons recorded by the assessingauthority as supplied to the petitioner clearly revealsthat the reasons have not been recorded by the assessingauthority himself but those reasons have been supplied bysomeone else, may be from the department itself but not thereasons recorded by the assessing authority himself. It isalso submitted that the reasons have to be recorded beforeissuing notice under Section 148 of the Act and reasonshave been recorded after issuance of the impugned notice tothe petitioner. According to learned counsel for thepetitioner, therefore, the notice under Section 148 of theAct is wholly without jurisdiction and deserves to bequashed. I have considered the submissions of learned counselfor the petitioner. It is clear from Section 143 of the Act itself that theassessing authority is required to pass appropriate orderfor the income of the assessee and the Proviso to sub-section (2) allows issuance of notice under Section 143 of the Act but it could have been issued in the petitioner'scase before the first day of June, 2003. Section 148 of theAct is an independent provision providing for re-assessmentof the income in case it is found that the income asescaped assessment. Section 148 nowhere provides that theassessing authority is required to undertake the procedurewhich is provided under Section 143(2) of the Act andthereafter only, he can initiate proceedings under Section148 of the Act. There is no reason to accept the contention of learnedcounsel for the petitioner that since the authority failedto initiate the proceedings within the prescribed time asprovided under Proviso to Section 143(2) of the Act. Thereis no factual foundation laid down in the writ petition forsaying so. The reasons recorded by the assessing authorityfor issuing the notice under Section 148 are reasonsrecorded by the assessing authority and there is no basisfor this Court to believe that all those reasons have beenrecorded by the assessing authority only for the purpose ofinitiating proceedings under Section 148 of the Act simplybecause he could not initiate the proceedings under Section143. There is no reason to accept the contention of learnedcounsel for the petitioner that since the authority failedto initiate the proceedings within the prescribed time asprovided under Proviso to Section 143(2) of the Act. Thereis no factual foundation laid down in the writ petition forsaying so. The reasons recorded by the assessing authorityfor issuing the notice under Section 148 are reasonsrecorded by the assessing authority and there is no basisfor this Court to believe that all those reasons have beenrecorded by the assessing authority only for the purpose ofinitiating proceedings under Section 148 of the Act simplybecause he could not initiate the proceedings under Section143. The contention of learned counsel for the petitionerthat the language used in the reasons for issuing noticeunder Section 148 of the Act clearly reveals that thenotice was issued prior and thereafter, the reasons havebeen recorded and the reasons have not been recorded by the assessing authority himself but he only recorded hissatisfaction. This Court is not subscribing the same viewbecause of the simple reason that the reasons are there inthe notice and satisfaction has been recorded by theassessing authority in clear and unequivocal terms,therefore, the notice under Section 148 of the Act cannotbe said to be without jurisdiction having been issuedwithout recording any reason and has been issued toovercome lapse which the assessing authority has committedin not opening the matter under Section 143(2) of the Act. In view of the above, I do not find any merit in thiswrit petition and the same is hereby dismissed. However, it is made clear that all the objections aboutthe reasons recorded by the assessing authority underSection 148 of the Act may be challenged by the petitionerbefore the same authority i.e. the assessing authority whoissued the notice to the petitioner. (PRAKASH TATIA), J. S.Phophaliya