Ita/703/2007 Of The Commissioner Of Income Tax v. M/S Baldwin Boys High School

1 IN THB HIGH COURT OF KARNATAKA AT BANGALORE DATEKED THIS THE 18[‘T]DAY OF MARCH 2014 PRESENT THE HON'BLE MR.JUSTICE DILIP B.BHOSALE AN D THE HON'BLE MR.JUSTICE B.MANOHAR ITA NOs.'703/2007, ‘7704/2007, 7705/207106/2007, 708/2007, 709/2007, 710/2007,711//2007, 7712/2007, 7113/2007, 714/2007716/2007 and 717/ 2007 ITA.No.703 /200 BBRTWEE 1. The Commissioner of Income-Tax,(Exemptions), C.R.Building,Queens Road, Bangalore. 2. The Assistant Director of Income-Tax,(Exemptions), Circle -17(1),C.R.Building, Queens Road,Bangalore.....Appellant (By Sri.K.V.Aravind, Advocate) AN): M/s.Baldwin Boys High School,No.14, Hosur Road,Richmond Town, Bangalore — 560 025. ...Respondent (By Sri.A.Shankar & Sri.M.Lava, Advocates) This ITA is filed under Sec.260-A ot Income TaxAct 1961, arising out of Order dated 01-06-2007 passedin ITA.No.882/Bng/2006, for the Assessment Year1999-2000, praying that this Hon’ble Court may bepleased to: 1.formulate the substantial questions of law.stated therein.stated therein. 11.allow the appeal and set aside the order|passedby theITAT,Bangalore|1n ITA.No.882/Bng/2006, dated 01-06-2007|confirm the orders of the Deputy Director|of Income Tax, Exemptions, Circle - 17(1),|Bangalore in the interest of justice and|equity.passedby theITAT,Bangalore|1n ITA.No.882/Bng/2006, dated 01-06-2007|confirm the orders of the Deputy Director|of Income Tax, Exemptions, Circle - 17(1),|Bangalore in the interest of justice and|equity. ITA NO.704/2007 BHITWER 1. The Commissioner of Income-Tax,(Exemptions), C.R.Building,Queens Road, Bangalore. 2. The Assistant Director of Income-Tax,(Exemptions), Circle -17(1),C.R.Building, Queens Road,Bangalore. ....Appellant (By Sri.K.V.Aravind, Advocate) AN): M/s.Baldwin Boys High School,No.14, Hosur Road,Richmond Town,Bangalore — 560 025....Respondent (By Sri.A.Shankar & Sri.M.Lava, Advocates) This ITA is filed under Sec.260-A ot Income TaxAct 1961, arising out of Order dated 01-06-2007 passedin ITA.No.883/Bang/2006, for the Assessment Year2000-01, praying that this Hon’ble Court may bepleased to: 1.formulate the substantial questions of lawstated therein. 11.allow the appeal and set aside the orderpassedby theITAT,Bangalore|in.ITA.No.883/Bang/2006, dated 01-06-2007.& confirm the order of the Appellate|Commissioner confirming the order passedby the Deputy Director of Income Tax,Exemptions, Circle - 17(1), Bangalore in theinterest of justice and equity.passedby theITAT,Bangalore|in.ITA.No.883/Bang/2006, dated 01-06-2007.& confirm the order of the Appellate|Commissioner confirming the order passedby the Deputy Director of Income Tax,Exemptions, Circle - 17(1), Bangalore in theinterest of justice and equity. ITA NO.705/2007 BBRTWEE 1. The Commissioner of Income-Tax, (Exemptions)C.R.Building, Queens Road,Bangalore. 2. The Assistant Director of Income-Tax,Exemptions,Circle -17(1),C.R.Building, Queens Road,Bangalore. ...Appellants (By Sri.K.V.Aravind, Advocate) AN): M/s.Baldwin Boys High School,No.14, Hosur Road,Richmond Town,Bangalore — 560 025....Respondent (By Sri.A.Shankar & Sri.M.Lava, Advocates) This ITA is filed under Sec.260-A of Income TaxAct 1961, arising out of Order dated 01-06-2007 passedin ITA.No.884/Bang/2006, for the Assessment Year2001-02, praying that this Hon’ble Court may bepleased to: 1.formulate the substantial questions of law|stated therein. 11.allow the appeal and set aside the orderpassedby theITAT,Bangalore|1nITA.No.884/Bang/2006, dated O1-06-2007—& confirm the order of the AppellateCommissioner confirming the order passedby the Deputy Director of Income Tax,Exemptions, Circle - 17(1), Bangalore in theinterest of justice and equity. 5 ITA NO.'706/200 BBRTWEE 1. The Commissioner of Income-Tax,(Exemptions)C.R.Building, Queens Road,Bangalore. (By Sri.A.Shankar & Sri.M.Lava, Advocates) This ITA is filed under Sec.260-A of Income TaxAct 1961, arising out of Order dated 01-06-2007 passedin ITA.No.884/Bang/2006, for the Assessment Year2001-02, praying that this Hon’ble Court may bepleased to: 1.formulate the substantial questions of law|stated therein. 11.allow the appeal and set aside the orderpassedby theITAT,Bangalore|1nITA.No.884/Bang/2006, dated O1-06-2007—& confirm the order of the AppellateCommissioner confirming the order passedby the Deputy Director of Income Tax,Exemptions, Circle - 17(1), Bangalore in theinterest of justice and equity. 5 ITA NO.'706/200 BBRTWEE 1. The Commissioner of Income-Tax,(Exemptions)C.R.Building, Queens Road,Bangalore. 2. The Assistant Director of Income-Tax,Exemptions,Circle -17(1),C.R.Building, Queens Road,Bangalore.....Appellant(By Sri.K.V.Aravind, Advocate)AN):M/s.Baldwin Boys High School,No.14, Hosur Road,Richmond Town,Bangalore — 560 025....Respondent (By Sri.A.Shankar & Sri.M.Lava, Advocates) This ITA is filed under Sec.260-A of Income TaxAct 1961, arising out of Order dated 01-06-2007 passedin ITA.No.885/Bang/2006, for the Assessment Year2002-03, praying that this Hon’ble Court may bepleased to: 1.formulate the substantial questions of law|stated therein. ll.allow the appeal and set aside the order|passedby theITAT,Bangalore|1nITA.No.889/Bang/2006, dated 01-06-2007.& confirm the order of the AppellateCommissioner confirming the order passedby the Deputy Director of Income Tax,Exemptions, Circle - 17(1), Bangalore in theinterest of justice and equity. ITA NO.708/2007 BBRTWEE 1. The Commissioner of Income-Tax, (Exemptions)C.R.Building, Queens Road,Bangalore. 2. The Assistant Director of Income-Tax,Exemptions,Circle -17(1),C.R.Building, Queens Road,Bangalore....Appellants(By Sri.K.V.Aravind, Advocate)AN):M/s.Baldwin Boys High School,No.14, Hosur Road,Richmond Town,Bangalore — 560 025....Respondent (By Sri.A.Shankar & Sri.M.Lava, Advocates) This ITA is filed under Sec.260-A ot Income TaxAct 1961, arising out of Order dated 01-06-2007 passedin ITA.No.111/Bang/2006 for the Assessment Year1999-00, praying that this Hon’ble Court may bepleased to: 1.formulate the substantial questions of lawstated therein. 11.allow the appeal and set aside the order|passedby theITAT,Bangalore|in.ITA.No.1111/Bang/2006, dated 01-06-2007.and confirm the order of the Appellate|Commissioner confirming the order passedby the Deputy Director of Income Tax,Exemptions, Circle - 17(1), Bangalore in theinterest of justice and equity. ITA NO.709/2007 BHITWER 1. The Commissioner of Income-Tax, (Exemptions)C.R.Building, Queens Road,Bangalore. 2. The Assistant Director of Income-Tax,Exemptions,Circle -17(1),C.R.Building, Queens Road,Bangalore....Appellants (By Sri.K.V.Aravind, Advocate) AN): M/s.Baldwin Boys High School,No.14, Hosur Road,Richmond Town,Bangalore — 560 025....Respondent (By Sri.A.Shankar & Sri.M.Lava, Advocates) This ITA is filed under Sec.260-A ot Income TaxAct 1961, arising out of Order dated 01-06-2007 passedin ITA.No.1112/Bang/2006, for the Assessment Year2000-01, praying that this Hon’ble Court may bepleased to: 1.formulate the substantial questions of lawstated therein. ll.allow the appeal and set aside the orderpassedby theITAT,Bangalore|in.ITA.No.1112/Bang/2006, dated 01-06-2007.& confirm the order of the Appellate|Commissioner confirming the order passedby the Deputy Director of Income Tax,Exemptions, Circle - 17(1), Bangalore in theinterest of justice and equity.passedby theITAT,Bangalore|in.ITA.No.1112/Bang/2006, dated 01-06-2007.& confirm the order of the Appellate|Commissioner confirming the order passedby the Deputy Director of Income Tax,Exemptions, Circle - 17(1), Bangalore in theinterest of justice and equity. ITA NO.710/2007 BBRTWEE 1. The Commissioner of Income-Tax, (Exemptions)C.R.Building, Queens Road,Bangalore. 1.formulate the substantial questions of lawstated therein. ll.allow the appeal and set aside the orderpassedby theITAT,Bangalore|in.ITA.No.1112/Bang/2006, dated 01-06-2007.& confirm the order of the Appellate|Commissioner confirming the order passedby the Deputy Director of Income Tax,Exemptions, Circle - 17(1), Bangalore in theinterest of justice and equity.passedby theITAT,Bangalore|in.ITA.No.1112/Bang/2006, dated 01-06-2007.& confirm the order of the Appellate|Commissioner confirming the order passedby the Deputy Director of Income Tax,Exemptions, Circle - 17(1), Bangalore in theinterest of justice and equity. ITA NO.710/2007 BBRTWEE 1. The Commissioner of Income-Tax, (Exemptions)C.R.Building, Queens Road,Bangalore. 2. The Assistant Director of Income-Tax,Exemptions,Circle -17(1),C.R.Building, Queens Road,Bangalore. ...Appellants (By Sri.K.V.Aravind, Advocate) AN): M/s.Baldwin Boys High School,No.14, Hosur Road,Richmond Town,Bangalore — 560 025....Respondent (By Sri.A.Shankar & Sri.M.Lava, Advocates) This ITA is filed under Sec.260-A of Income TaxAct 1961, arising out of Order dated 01-06-2007 passedin ITA.No.1113/Bang/2006, for the Assessment Year2002-03, praying that this Hon’ble Court may bepleased to: 1.formulate the substantial questions of law|stated therein. 1.allow the appeal and set aside the orderpassedby theITAT,Bangalore|1nITA.No.1113/Bang/2006, dated 01-06-2007.& confirm the order of the AppellateCommissioner confirming the order passedby the Deputy Director of Income Tax,Exemptions, Circle - 17(1), Bangalore in theinterest of justice and equity. 10| ITA NO.711/2007 BBRTWEE 1. The Commissioner of Income-Tax,(Exemptions)C.R.Building, Queens Road,Bangalore. 2. The Assistant Director of Income-Tax,Exemptions,Circle -17(1),C.R.Building, Queens Road,Bangalore.....Appellant (By Sri.K.V.Aravind, Advocate) AN): M/s.Baldwin Girls High School,No.14, Richmond Town,Bangalore — 560 025....Respondent (By Sri.A.Shankar & Sri.M.Lava, Advocates) This ITA is filed under Sec.260-A of Income TaxAct 1961, arising out of Order dated 01-06-2007 passedin ITA.No.886/Bng/2006, for the Assessment Year1999-2000, praying that this Hon’ble Court may bepleased to: 1.formulate the substantial questions of law|stated therein. 11.allow the appeal and set aside the order|passedby theITATBangalore|1nITA.No.886/Bng/2006,dated|01-06-2007contirmtheordersoT theAppellateCommissioner and confirm the order passedby the Deputy Director of Income Tax,(Exemptions), Circle - 17(1), Bangalore in the interest of justice and equity. ITA NO.712/2007 BBRTWEE 1. The Commissioner of Income-Tax,(Exemptions)C.R.Building, Queens Road,Bangalore. 2. The Assistant Director of Income-Tax,Exemptions,Circle -17(1),C.R.Building, Queens Road,Bangalore....Appellants (By Sri.K.V.Aravind, Advocate) AN): M/s.Baldwin Girls High School,No.19, Richmond Town,Bangalore — 560 025. ...Respondent (By Sri.A.Shankar & Sri.M.Lava, Advocates) This ITA is filed under Sec.260-A ot Income TaxAct 1961, arising out of Order dated 01-06-2007 passedin ITA.No.887/Bng/2006, for the Assessment Year2000-01, praying that this Hon’ble Court may bepleased to: 1.formulate the substantial questions of lawstated therein.stated therein. ll.allow the appeal and set aside the order|passedby theITAT,Bangalore|in.ITA.No.887/Bng/2006,dated01-06-2200/contirmtheorderoT|theAppellateCommissioner confirm the order passed bytheDeputyDirector|oT|IncomeTax,(Exemptions), Circle - 17(1), Bangalore in the interest of justice and equity. ITA NO.713/2007 BHITWER 1. The Commissioner of Income-Tax, (Exemptions) C.R.Building, Queens Road,Bangalore. 2. The Assistant Director of Income-Tax, Exemptions,Circle -17(1),C.R.Building, Queens Road,Bangalore. ...Appellants (By Sri.K.V.Aravind, Advocate) AN): M/s.Baldwin Girls High School,No.19, Richmond Town,|Bangalore — 560 025. ...Respondent (By Sri.A.Shankar & Sri.M.Lava, Advocates) 1.formulate the substantial questions of lawstated therein.stated therein. ll.allow the appeal and set aside the order|passedby theITAT,Bangalore|in.ITA.No.887/Bng/2006,dated01-06-2200/contirmtheorderoT|theAppellateCommissioner confirm the order passed bytheDeputyDirector|oT|IncomeTax,(Exemptions), Circle - 17(1), Bangalore in the interest of justice and equity. ITA NO.713/2007 BHITWER 1. The Commissioner of Income-Tax, (Exemptions) C.R.Building, Queens Road,Bangalore. 2. The Assistant Director of Income-Tax, Exemptions,Circle -17(1),C.R.Building, Queens Road,Bangalore. ...Appellants (By Sri.K.V.Aravind, Advocate) AN): M/s.Baldwin Girls High School,No.19, Richmond Town,|Bangalore — 560 025. ...Respondent (By Sri.A.Shankar & Sri.M.Lava, Advocates) This ITA is filed under Sec.260-A ot Income TaxAct 1961, arising out of Order dated 01-06-2007 passedin ITA.No.888/Bng/2006, for the Assessment Year2001-02, praying that this Hon’ble Court may bepleased to: 1.formulate the substantial questions of lawstated therein.stated therein. ll.allow the appeal and set aside the orderpassedby theITAT,Bangalore|in.ITA.No.888/Bng/2006,dated01-06-2200/contirmtheorders|oT|theAppellateCommissioner and confirm the order passed|by the Deputy Director of Income Tax,(Exemptions), Circle - 17(1), Bangalore in the interest of justice and equity.passedby theITAT,Bangalore|in.ITA.No.888/Bng/2006,dated01-06-2200/contirmtheorders|oT|theAppellateCommissioner and confirm the order passed|by the Deputy Director of Income Tax,(Exemptions), Circle - 17(1), Bangalore in the interest of justice and equity. ITA NO.714/2007 BBRTWEE 1. The Commissioner of Income-Tax,(Exemptions)C.R.Building, Queens Road,Bangalore. 2. The Assistant Director of Income-Tax,Exemptions,Circle -17(1),C.R.Building, Queens Road,Bangalore. ...Appellants (By Sri.K.V.Aravind, Advocate) AN): M/s.Baldwin Girls High School,No.19, Richmond Town,Bangalore — 560 025. ...Respondent (By Sri.A.Shankar & Sri.M.Lava, Advocates) This ITA is filed under Sec.260-A of Income TaxAct 1961, arising out of Order dated 01-06-2007 passedin ITA.No.889/Bng/2006, for the Assessment Year2002-03, praying that this Hon’ble Court may bepleased to: 1.formulate the substantial questions of law|stated therein. 1.allow the appeal and set aside the orderpassedby theITAT,Bangalore|1nITA.No.889/Bng/2006,dated|01-06-2007confirmthe ordersot the Appellate.Commissioner and confirming the orderpassed by the Deputy Director of IncomeTax, (Exemptions), Circle - 1/7(1), Bangalorein the interest of justice and equity.| 15) ITA NO.716/2007 BBRTWEE 1. The Commissioner of Income-Tax,(Exemptions)C.R.Building, Queens Road,Bangalore. 2. The Assistant Director of Income-Tax,Exemptions,Circle -17(1),C.R.Building, Queens Road,Bangalore.....Appellant (By Sri.K.V.Aravind, Advocate) AN): M/s.Baldwin Girls High School,No.19, Richmond Town,Bangalore — 560 025....Respondent (By Sri.A.Shankar & Sri.M.Lava, Advocates) This ITA is filed under Sec.260-A of Income TaxAct 1961, arising out of Order dated 01-06-2007 passedin ITA.No.1114/Bng/2006, for the Assessment Year1999-2000, praying that this Hon’ble Court may bepleased to: 1.formulate the substantial questions of law|stated therein. ll.allow the appeal and set aside the order|passedby theITAT,Bangalore|1nITA.No.1114/Bng/2006, dated 01-06-2007.confirmthe ordersot the Appellate.Commissioner and confirm the order passedby the Deputy Director of Income Tax,(Exemptions), Circle - 17(1), Bangalore in the interest of justice and equity. ITA NO.717/2007 BBRTWEE 1. The Commissioner of Income-Tax,(Exemptions)C.R.Building, Queens Road,Bangalore. 2. The Assistant Director of Income-Tax,Exemptions,Circle -17(1),C.R.Building, Queens Road,Bangalore....Appellants (By Sri.K.V.Aravind, Advocate) AN): M/s.Baldwin Girls High School,No.19, Richmond Town,Bangalore — 560 025. ...Respondent (By Sri.A.Shankar & Sri.M.Lava, Advocates) 1.formulate the substantial questions of law|stated therein. ll.allow the appeal and set aside the order|passedby theITAT,Bangalore|1nITA.No.1114/Bng/2006, dated 01-06-2007.confirmthe ordersot the Appellate.Commissioner and confirm the order passedby the Deputy Director of Income Tax,(Exemptions), Circle - 17(1), Bangalore in the interest of justice and equity. ITA NO.717/2007 BBRTWEE 1. The Commissioner of Income-Tax,(Exemptions)C.R.Building, Queens Road,Bangalore. 2. The Assistant Director of Income-Tax,Exemptions,Circle -17(1),C.R.Building, Queens Road,Bangalore....Appellants (By Sri.K.V.Aravind, Advocate) AN): M/s.Baldwin Girls High School,No.19, Richmond Town,Bangalore — 560 025. ...Respondent (By Sri.A.Shankar & Sri.M.Lava, Advocates) This ITA is filed under Sec.260-A ot Income TaxAct 1961, arising out of Order dated 01-06-2007 passedin ITA.No.1115/Bng/2006, for the Assessment Year2000-01, praying that this Hon’ble Court may bepleased to: 1.formulate the substantial questions of lawstated therein.stated therein. ll.allow the appeal and set aside the order|passedby theITAT,Bangalore|in.ITA.No.1115/Bng/2006, dated O1-06-2007—contirmtheorders|oT|theAppellateCommissioner and confirm the order passedby the Deputy Director of Income Tax,(Exemptions), Circle - 17(1), Bangalore in the interest of justice and equity.passedby theITAT,Bangalore|in.ITA.No.1115/Bng/2006, dated O1-06-2007—contirmtheorders|oT|theAppellateCommissioner and confirm the order passedby the Deputy Director of Income Tax,(Exemptions), Circle - 17(1), Bangalore in the interest of justice and equity. These appeals coming on for hearing this day, thecourt delivered the following: ORAL JUDGMENT (DILIP B BHOSALE J.) This batch of 13 income tax appeals is arisingfrom the common order dated O1["-]June 2OO7 renderedby the Income Tax Appellate Tribunal, Bangalore Bench ‘B’ (for short‘the Tribunal’), disposing of 13 income tax.appeals namely ITA Nos.882-885/2006, ITA Nos.1111-1113/2006, ITA Nos.886-889/2006 & ITA Nos.1114- 1115/2006. All these appeals pertain to diiferent assessment years starting from 1999-2000 to 2002-03. —Out of the 13 appeals before the Tribunal, 4 appealseach were filed by the assessees namely M/s.BaldwinBoys High School and M/s. Baldwin Girls High Schooland 5 appeals were filed by the Revenue namely ITA.Nos.1111-1115/2006. The Tribunal allowed the appealsfiled by the assessees in part and dismissed the appeals.filed by the Revenue. Hence, the Revenue has filed theinstant thirteen appeals. 2 |TheaSSECSSCCEaltetheTrust,which>TUN|educational|institutions.HOTalltherelevant.assessment years they declared their income ‘Nil’,claiming exemption under Section 10(23c)(vi) of theIncome Tax Act, 1961 (for short ‘the Act). The|assessments completed were reopened under Section147 on the ground that the assessees were notregistered under Section 12A nor had requisite approvalunder Section 10(23C)(vi) of the Act. In response to the notice under Section 148 of the Act, the assessees filed|returns on 18-3-2004, once again declaring theirincome ‘Nil’. We are not entering into further details asthey are not relevant for deciding these appeals. Sufficeit to say that the record reveals, in the first 7 appealsthe total liability of tax does not exceed Rs.23,00,000/-—whereas in the remaining appeals, the total tax labilityis about Rs.18,00,000/-. Out of the 13 appeals, in 9appeals the tax liability is ‘NIL’ and in 2 appeals, the taxliability is less than Rs.10,00,000/- 3.|In this backdrop, the Revenue has raised thefollowing substantial question of law, which is common.in all the appeals: © notice under Section 148 of the Act, the assessees filed|returns on 18-3-2004, once again declaring theirincome ‘Nil’. We are not entering into further details asthey are not relevant for deciding these appeals. Sufficeit to say that the record reveals, in the first 7 appealsthe total liability of tax does not exceed Rs.23,00,000/-—whereas in the remaining appeals, the total tax labilityis about Rs.18,00,000/-. Out of the 13 appeals, in 9appeals the tax liability is ‘NIL’ and in 2 appeals, the taxliability is less than Rs.10,00,000/- 3.|In this backdrop, the Revenue has raised thefollowing substantial question of law, which is common.in all the appeals: © “Whether on the facts and in thecircumstances of the case and in law, the|notice issued by the Assessing Officer under|section 148 of the Income Tax Act, 1961 (for|short|‘the Act’}) without recording reasons ascontemplated by sub-Section (2) of Section|148 of the Act would vitiate the whole|proceedings? In other words, whether thereasons as contemplated by sub-Section(2) ofsection 148 of the Act, in the present cases,| were recorded after issuance of notice under|section 148 of the Act and, therefore, the|whole proceedings are bad in law? 4Learned counsel appearing for the parties are ad-idem that if the aforementioned substantial question oflaw is answered against the Revenue and in favour ofthe assessees then we need not address the other!questions and hence, we have heard the learnedcounsel for the parties on this question and with theirassistance gone through the orders passed by theTribunal and the authorities below and so also the'original records placed for our consideration. 5Mr.Shankar, learned counsel appearing for theassessees, at the outset, invited our attention to the.provisions contained in Section 148 of the Act andsubmitted that it was mandatory for the AssessingOfficer under sub-Section(2) of Section 148 of the Act torecord reasons before issuing the notice under thisprovision and since the notice was issued without recording the reasons, the whole proceedings ofreopening of the assessment would vitiate. He invitedour attention to the observations made by the Tribunalon this question and contended that this objectioncould not be raised by the assessees before theAssessing Officer since the reasons records by theAssessing Officer, despite their written application, werenot served on them. He submitted that they got a copyof the reasons recorded by the Assessing Officer onlywhen the matter was carried in appeal before the CIT.(Appeals). The moment they got a copy of thereasons, they raised objections’ before the CIT(Appeals) stating that the reasons were not recordedbefore issuing notice under Section 148 of the Act.The CIT(Appeals) however brushed aside the objectionholding that there was ae typographical error inrespect of the date of reasons’ recorded undersection 148(2) of the Act. Mr.Shankar submitted—that, similar objection was’ raised _ before the Tribunal and the Tribunal after having perused theoriginal records, has rightly observed that the reasonswere recorded after issuance of the notice under Section148 of the Act. 6. On the other hand, Mr.K.V.Aravind, learnedcounsel appearing for the Revenue invited our attentionto the original records and submitted that a drait noticeunder Section 148 of the Act was prepared by theAssessing Officer on 20[th]January 2004 itself, which|Shows that the Assessing Officer had recorded thereasons even before issuing the notice. He submittedthat the Assessing Officer struck off the typed date ofthe reasons since it was wrongly typed as 4-2-2004.instead of 30-01-2004. Therefore, he submitted that itcannot be inferred that the reasons were not recorded|before issuing notice under Section 148 of the Act. Heplaced the original record before us for our perusal insupport of his contention. 6. On the other hand, Mr.K.V.Aravind, learnedcounsel appearing for the Revenue invited our attentionto the original records and submitted that a drait noticeunder Section 148 of the Act was prepared by theAssessing Officer on 20[th]January 2004 itself, which|Shows that the Assessing Officer had recorded thereasons even before issuing the notice. He submittedthat the Assessing Officer struck off the typed date ofthe reasons since it was wrongly typed as 4-2-2004.instead of 30-01-2004. Therefore, he submitted that itcannot be inferred that the reasons were not recorded|before issuing notice under Section 148 of the Act. Heplaced the original record before us for our perusal insupport of his contention. TS|section 148 of the Act provides for issue of noticewhere the income has escaped assessment. Sub-section (2) of Section 148 of the Act provides that theAssessing Officer shall, before issuing any notice underthis Section, record his reasons for doing so. In view ofthis provision, no dispute was raised before us aboutthe procedure contemplated under this provision. Frombare perusal of section 148 of the Act, it is clear ascrystal that the Assessing Officer is obliged to recordreasons before issuing notice under Section 148 of theAct. In this backdrop, we have examined the originalrecords placed before us by learned counsel for theRevenue. It is true that in one of the files, there was a.drait of reasons purportedly prepared by the AssessingOfficer on 20[th]January 2004. It was not signed by the.Assessing Officer. The reasons recorded by the)Assessing Officer were typed, as is clear from theprintout of the original reasons, on 4-2-2004. The typeddated was struck off with pen and the date 30-01- 2004 was written by hand with the same pen. Though theoriginal date (typed) was struck off with pen still thetyped date is visible/could be read or is clearly seen,and it was typed as 4-2-2004. Before the Tribunal acontroversy was raised that the print out of the reasonswas computer generated and it was printed with thedate of printing automatically by the Computer. Be thatas it may, the fact remains that the typed date or thedate of print out was 4-2-2004 and that it was changedto 30-1-2004 as the date of reasons recorded under|sub-Section (2) of Section 148 of the Act. Thus, therecord was set right by showing that the date of thenotice and the date on which the reasons were recordedwas same. Why and how the date 4-2-2004 isappearing on the original reasons recorded under sub-section (2) of Section 148 of the Act is not explained bythe Assessing Officer. Neither in the order of theAssessing Officer nor in the order of the CIT(Appeals) anattempt was made to explain striking off the original date and writing the date 30-01-2004 by hand. It waspossible tor the Assessing Officer to place an affidavit ofthe Typist on record explaining the purported errorcommitted by him while typing the reasons recorded bythe Assessing Officer. On perusal of the originalrecords, we are satisfied that the reasons wereprepared on 4[th]February 2004 whereas the notice wassent on 30[th]January 2004. It is also pertinent to notethat the contents of drait reasons and the originalreasons recorded by the Assessing Officer do not tally. —It would be relevant to notice the observations made bythe Tribunal in paragraph 10 of the order, which readthus: “The original was produced by the Id.CIT(DR) in this connection and it wasobserved in the open court that theprintout was generated by use of acomputer. The computer apparently filledin the date automatically. If the dateswere not filled automatically by computer,normally it would be blank, which wasnot so in the instant case. The computerprint out apparently generated the date onwhich the reasons recorded were printed “The original was produced by the Id.CIT(DR) in this connection and it wasobserved in the open court that theprintout was generated by use of acomputer. The computer apparently filledin the date automatically. If the dateswere not filled automatically by computer,normally it would be blank, which wasnot so in the instant case. The computerprint out apparently generated the date onwhich the reasons recorded were printed out. Even going by the proposition thatthe print could have been later on andthere could have been some material,which would have been written up inhand to suggest that the reasons were infactrecordedOTL30-1-2004,theDepartment failed to produce such adocument.|SincetheDepartment,produced the original print out copy by thecomputer of the reasons recorded whichare identical as are filed by the assesseebefore us containing identical correctionby hand with no_ signature on_ thcorrection, it is apparent that the reasonswere not recorded at the time of issue ofnotice. The Department was_ thereforeasked to make submission on this tissue,with reference to the order of the Tribunalin. H.M.Constructions V. ACIT vide orderdated 2YS8&-10-2005 in ITA Nos.16661650/Bang/2YDO, ITANo.338/ Bang/ 200(Page 196 to 222 of the paper book). TheTribunal considered the facts that theassumption ofjurisdiction for reopening ofassessment is based on a notice, whichitselfhingedfirmlyOntheTeCaASONrecorded. The Tnbunal in its decisiondated 28-10-2005 drew its conclusionfrom the decision of the Rajasthan HighCourt in CIT v. SHIVRATHAN SONI (2005)194 CTR (Raj) 126, wherein the courtruled that tf the facts show that thereasons were not recorded before theissue of notice u/s.148 but afterwards,then the assessment is bad and has to becancelled. The Department did notprovide any material or document that the computerprintOUT.of|theTeCaASONrecorded, though has taken on 4-2-04, butit was based on the note containing thereasons recorded on 30-1-04. In theinstant cases too, the date of notice is30-1-2004 and the reasons recorded areclearly dated 4-2-2004, 1.e., the reasonsare not recorded before the issue of noticebut|afterwards, the|assumptionof|jurisdiction is clearly bad and accordinglythe assessments have to be quashed,which we do.” 3.|As a matter of fact, though the Revenue has raisedthe above substantial question of law, from perusal ofthe order passed by the Tribunal and so also the othermaterials placed before us, it is clear that it is a findingof fact recorded by the Tribunal holding that notice wasissued even before the reasons were recorded. We do'§not find any reasons to interfere with the finding of factsrecorded by the Tribunal. The reasons recorded by theTribunal, on the facts and in the circumstances of the)case cannot be termed as perverse. — 290 OQ Inthecircumstances,alltheappeals are|dismissed, however, there shall be no order as to)costs. Sd/- |JUDGESd/-JUDGE “x mpk/