2010 (10) TMI 820 - HC - Income Tax

Notice issued under section 12AA(3) - petitioner submits that the impugned notice is wholly without jurisdiction inasmuch as there is no direction in any order of the Income-tax Appellate Tribunal Cuttack Bench Cuttack authorizing the issue of the impugned notice - Held that - Though power has been vested under section 12AA(3) in the Commissioner of Income-tax to safeguard the interests of the Revenue but such power vested in him can only to be exercised by him on a clear-cut satisfaction of the circumstances for exercise of such power. Although the Tribunal s order quashed an earlier order of the Commissioner dated December 15 2006 under section 12AA(3) the same order also clarified that such power should be utilized quite cautiously and consciously . Therefore no hesitation to direct of the impugned notice dated September 24 2009 issued under section 12AA(3) vide annexure 1 to the writ petition and we order accordingly - writ application is allowed.

Summary

Issues:
Challenge to notice under section 12AA(3) of the Income-tax Act.

Analysis:
The petitioner sought to quash a notice issued under section 12AA(3) of the Income-tax Act. The petitioner argued that the notice was without jurisdiction as there was no direction in any order of the Income-tax Appellate Tribunal authorizing the notice. The Tribunal had allowed the petitioner's appeal, emphasizing the need for caution and conscious utilization of the power vested in the Commissioner of Income-tax under section 12AA(3). The petitioner contended that the notice lacked a valid foundation and should be quashed.

The Income-tax Department defended the notice, stating that the Commissioner retained the authority under section 12AA(3) despite the Tribunal quashing an earlier cancellation order. The Department highlighted a search and seizure operation against the petitioner-institute and justified the issuance of the notice based on information obtained during the operation. The Department argued that the Commissioner could initiate a new proceeding under section 12AA(3) even after a previous order had been set aside by the Tribunal.

The petitioner countered by asserting that no adverse findings were recorded against the petitioner-institution after the assessment proceeding following the search and seizure operation. The petitioner emphasized that the notice did not refer to any subsequent facts or events to justify its issuance. Moreover, the petitioner raised concerns about the notice being issued by an Income-tax Officer instead of the Commissioner of Income-tax, as required by law.

The High Court, after considering the arguments, held that the power under section 12AA(3) should only be exercised by the Commissioner upon clear satisfaction of the circumstances warranting such action. The Court noted the Tribunal's emphasis on cautious and conscious utilization of this power. Consequently, the Court directed the quashing of the impugned notice issued under section 12AA(3) and clarified the conditions under which the Commissioner could exercise such power. The writ application was allowed in favor of the petitioner.