Rajoo Engineers Ltd v. Dy.commissioner Of Income Tax

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5773 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE D.A.MEHTA HONOURABLE MR.JUSTICE H.B.ANTANI ========================================================= = 1 [Whether Reporters of Local Papers may be ]allowed to see the judgment ?allowed to see the judgment ? 2To be referred to the Reporter or not ? 3 [Whether their Lordships wish to see the ]fair copy of the judgment ?fair copy of the judgment ? Whether this case involves a substantial question of law as to the interpretation 4of the constitution of India, 1950 or any order made thereunder ?of the constitution of India, 1950 or any order made thereunder ? 5 [Whether it is to be circulated to the ]civil judge ?civil judge ? ========================================================== RAJOO ENGINEERS LTD. Versus DY.COMMISSIONER OF INCOME TAX ========================================================== Appearance :MR SN SOPARKAR,learned Senior Advocate with Ms. Vaibhavi Parikh, learned advocate for Petitioner.MRS MAUNA BHATT for Respondent. ========================================================= CORAM : HONOURABLE MR.JUSTICE D.A.MEHTA and HONOURABLE MR.JUSTICE H.B.ANTANI Date : 02/07/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE D.A.MEHTA) This petition was originally filed challenging notices issued by the respondent under section 148 of the I.T. Act, 1961 [the Act] for A.Ys. 93-94, 94-95 and 95-96. At the time of admission on 23.11.99, the Court recorded that “Mr. Soparkar does not press this Spl. C.A. insofar as it relates to assessment years 1994-95 and 1995-96”. Learned senior Advocate for the petitioner states that return of income for A.Y. 93-94 was filed declaring income of Rs.16,32,594-00. On 10.01.96 assessment order under section 143 (3) of the Act came to be made assessing total income of Rs.16,55,090/-. The respondent issued notice under section 148 of the Act on 16.01.97. It was contended that considering the reasons recorded for A.Y. 93-94, which appear as annexure to the affidavit-in-reply filed by the respondent, it was apparent that reasons had not been recorded on the day the impugned notice was issued because the reasons are dated 15.01.98. Learned counsel, therefore, argued that the impugned notice for A.Y. 93-94 is required to be quashed and set aside in light of the provisions of section 148 (2) of the Act. Learned Standing Counsel appearing for the respondent authority has placed on record xerox copy of notice under section 148 of the Act for A.Y. 93-94 which bears two dates: (1). 16.01.97, and, (2). 16.01.98 - with some illegible noting preceding the date 16.01.98. It was suggested by the learned counsel that the endorsement appears to be 'served by'. It was thus contended that the reasons were recorded on 15.01.98 and the impugned notice was actually served on 16.01.98 and not 16.01.97 as contended by the petitioner. Section 148 (2) of the Act reads as under: “The Assessing Officer shall, before issuing any notice under this section, record his reasons for doing so”. Learned Standing Counsel appearing for the respondent authority has placed on record xerox copy of notice under section 148 of the Act for A.Y. 93-94 which bears two dates: (1). 16.01.97, and, (2). 16.01.98 - with some illegible noting preceding the date 16.01.98. It was suggested by the learned counsel that the endorsement appears to be 'served by'. It was thus contended that the reasons were recorded on 15.01.98 and the impugned notice was actually served on 16.01.98 and not 16.01.97 as contended by the petitioner. Section 148 (2) of the Act reads as under: “The Assessing Officer shall, before issuing any notice under this section, record his reasons for doing so”. On a plain reading of the aforesaid section, the legislative mandate which one discerns is that before issuing any notice under section 148 of the Act, the Assessing Officer is bound to record reasons for issuance of such notice. The facts of the present case which have come on record do not indicate that reasons were recorded before issuing the notice under section 148 of the Act for A.Y. 93-94. The xerox copy of the notice on which reliance has been placed also cannot assist the case of the Revenue for the simple reason that in the printed column for date, 16.1.97 is clearly mentioned. Even if one accepts that the endorsement below the printed column refers to date of service as 16.01.98, the language of section 148 (2) of the Act does not permit recording of reasons between the date of issuance of notice and service of notice. The words used by the provisions in no uncertain terms require recording of reasons before issuing any notice. The terms 'issued' and 'served' in SCA/5773/1999 relation to a notice are distinct and have different connotation in legal parlance and in the context of section 148 of the Act, cannot be equated. In the aforesaid facts and circumstances of the case, it is apparent that mandatory requirements provided by section 148 (2) of the Act of recording of reasons before issuance of notice have not been complied with insofar as the impugned notice under section 148 of the Act for A.Y. 93-94 is concerned. Hence notice dated 16.01.97 for A.Y. 93-94 is quashed and set aside. The petition is allowed accordingly. Rule is made absolute. There shall be no order as to costs. [D.A.MEHTA, J.] mathew [H.B.ANTANI, J.]