2006 (3) TMI 88 - HC - Income Tax

Erroneous and Prejudicial Order - Writ petition filed by the assessee, for quashing the notices u/s 148, is dismissed. However, it is clarified that the notices issued by the Assessing Officer, i.e., ITO, on the direction of CIT, for reopening the assessment in respect of earlier years other than the assessment year 2000-01 (which was the subject matter of the revision), shall be subject to the limitation contained in sections 149 and 153(2). We reiterate for the sake of clarity that the notices under section 148 of the Act issued by the Assessing Officer pursuant to the aforesaid direction, are not saved from the limitation, under the exclusionary provisions of sections 150(1) and 153(3)(ii) it is desirable and in the public interest that the Chief Vigilance Commissioner is approached by the appointing authority of CIT, who interfered in the statutory functioning of the AO and pressurized her to pass the order accepting the return of the assessee, to inquire into the matter and if on inquiry the Chief Vigilance Commissioner finds and reports that the said Commissioner of Income-tax was guilty of misconduct, action is taken against him by his such authority, as per law.

Issues Involved:

1. Competence and locus standi of the Commissioner of Income-tax, Shimla, to file the appeal.
2. Validity of the order passed by the Assessing Officer under the influence of the Commissioner of Income-tax.
3. Scope of the revisional jurisdiction under section 263 of the Income-tax Act.
4. Justification of the Income-tax Appellate Tribunal's decision to set aside the order of the Commissioner of Income-tax.
5. Legality of reopening assessments for earlier years based on the direction of the Commissioner of Income-tax.
6. Limitation for issuance of notice under section 148 of the Income-tax Act.

Detailed Analysis:

1. Competence and Locus Standi of the Commissioner of Income-tax, Shimla:

The objection was raised that the Commissioner of Income-tax, Shimla, did not have the competence to file the appeal as the jurisdiction had been transferred to the Commissioner of Income-tax, New Delhi. The court allowed the impleadment of the Commissioner of Income-tax, New Delhi, as a co-appellant, thereby curing the defect in the appeal. The court referenced the Supreme Court decision in Uday Shankar Triyar v. Ram Kalewar Prasad Singh, which held that procedural defects can be rectified subsequently.

2. Validity of the Order Passed by the Assessing Officer:

The court observed that the Assessing Officer's order was passed under the influence and pressure of the Commissioner of Income-tax, Shimla, without independent application of mind. The footnote in the Assessing Officer's order indicated that the Commissioner directed the acceptance of the return without further inquiry, which the court found to be an illegal and unwarranted interference in the statutory functioning of the Assessing Officer.

3. Scope of the Revisional Jurisdiction under Section 263 of the Income-tax Act:

The court held that the Commissioner of Income-tax was justified in exercising his revisional jurisdiction under section 263, as the order passed by the Assessing Officer was erroneous and prejudicial to the interests of the Revenue. The court emphasized that the Assessing Officer's order was not based on a view formed by her but on the dictates of a superior officer, which warranted the exercise of revisional powers by the Commissioner.

4. Justification of the Income-tax Appellate Tribunal's Decision:

The court found the Tribunal's decision to set aside the Commissioner's order to be perverse. The Tribunal had held that the Assessing Officer passed the order after scrutiny and that the Commissioner could not substitute his view for that of the Assessing Officer. However, the court noted that the Assessing Officer's order was influenced by the Commissioner and was not an independent decision, justifying the Commissioner's intervention.

5. Legality of Reopening Assessments for Earlier Years:

The court discussed the provisions of sections 150 and 153 of the Income-tax Act, which allow for reopening assessments in consequence of or to give effect to a finding or direction of an appellate or revisional authority. The court referenced the Supreme Court decision in ITO v. Murlidhar Bhagwan Das, which held that such findings or directions must pertain to the assessment year under appeal or revision. The court concluded that while the Commissioner could advise reopening assessments for earlier years, such actions would be subject to the limitations prescribed in sections 149 and 153(2).

6. Limitation for Issuance of Notice under Section 148:

The court clarified that the notices issued under section 148 for reopening assessments must adhere to the limitation periods prescribed in section 149. The court did not delve into whether the specific notices were barred by limitation, leaving it to the Assessing Officer to decide, with the possibility of appeal or revision available to the assessee.

Conclusion:

The appeal was accepted, the order of the Income-tax Appellate Tribunal was set aside, and the order of the Commissioner of Income-tax was restored. The writ petition filed by the assessee was dismissed, with the clarification that notices under section 148 for earlier years must comply with the limitation provisions. The court also directed that the Chief Vigilance Commissioner be approached to inquire into the conduct of the Commissioner of Income-tax, Shimla.

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