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TMI Blog2010 (9) TMI 829X X X X Extracts X X X X X X X X Extracts X X X X ..... e prayer to quash the notice dated 22.4.1997 (Annexure 2), issued by the learned Deputy Commissioner of Income Tax, in terms of section 148 of the Income Tax Act (hereinafter referred to as The Act'), as to why his return for the assessment year 1994-95 be not re-assessed in terms of section 147 of the Act. Respondent nos. 1 and 2, the official respondents, have placed on record their counter affidavit as well as supplementary counter affidavit. Respondent nos. 3 to 7, the alleged benamidars of the petitioner, are represented by their respective counsel but have not placed on record their respective counter affidavit(s). 2. A brief statement of facts essential for the disposal of this writ petition may be indicated. The petitioner before us is in the capacity of individual assessee. It is stated in paragraph 5 of the writ petition that his source of income, inter alia, is by way of advisory fee from different charitable institutions which are duly registered under the provisions of the Societies Registration Act 1860, also as charitable institutions in terms of section 12A of the Act by appropriate orders of the Commissioner of Income Tax, and are respondent nos. 3 to 7 he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of. 2.2) Aggrieved by the orders of assessment with respect to their own returns, respondent nos. 3 to 7 preferred separate appeals before the learned Commissioner of Income Tax (Appeals), which were allowed by different orders. The orders of assessment with respect to them were set aside, and the learned appellate authority held that those institutions are charitable institutions within the meaning of sections 11 and 12A of the Act. 3. While assailing the validity of the impugned notice, learned counsel for the petitioner submits that, in view of the appellate orders with respect to respondent nos. 3 to 7, the very foundation of the impugned notice is gone. He next submits that the petitioner's case is no longer hit by the provisions of section 13(1)(c) read with sub-section (3) of section 13 of the Act. He lastly submits that the appellate orders with respect to past periods have consistently held on the appeals preferred by respondent nos. 3 to 7 that those are charitable institutions and, therefore, the learned assessing officer should have followed the same position with respect to respondent nos. 3 to 7 relating to the period in question in the interest of un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is for the impugned notices. It is further relevant to state that aggrieved by the assessment orders, respondent nos. 3 to 7 had preferred separate statutory appeals which were allowed by different orders passed by the learned Commissioner of Income Tax (Appeals) on 31.12.1997, whereby he disagreed with the orders of assessment, set aside the same and, inter alia, held that respondent nos. 3 to 7 are charitable institutions, the payments made by them to the petitioner were for services rendered by him, and those institutions are not benamidars of the petitioner. It is thus evident on the face of it that the very foundation for the impugned notice go. When the substratum is gone, where is the question of the super structure? In fact, respondent nos. 1 and 2 in their supplementary counter affidavit sworn on 12.2.2001, obviously filed after the appellate orders with respect to respondent nos. 3 to 7, takes notice of the same and fairly concedes the position that the very basis for the impugned notice is gone. The relevant portion of the supplementary counter affidavit is reproduced hereinbelow:- 4. That the proceedings under section 148 was stayed by the Hon'ble High Court w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers of the appellate authority with respect to respondent nos. 3 to 7, submits that the finding against the petitioner in terms of section 13(1)(c) read with section 13(3) of the Act, has to go. We agree with the submission and hold accordingly. 7. Learned counsel for the petitioner submits that consistency is the hall-mark of justice and the assessee should not be rattled by inconsistent decisions of the authorities. Every assessee is entitled to organize his affairs in the manner they perceive to have been accepted by the authorities in the previous years. Learned counsel for the petitioner has rightly relied on assessment orders and the appellate orders with respect to respondent nos. 3 to 7 with respect to the past periods which are to the same effect as the appellate orders for the period in question. Looking at it from this angle, the view taken by the learned assessing authority in the present case with respect to the period in question seems to be without justification. There was no allegation against the petitioner, nor against respondent nos. 3 to 7, of suppression of income or material facts. A mere change of opinion on the self-same facts should not normally be the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g length of time. No such change of circumstances is discernible in the present case. The learned authorities under the Act have neither come across new facts or circumstances, nor suppression of fact, and is really a case of different view on the self-same facts as it obtained before the Settlement Commission. The view taken by the Settlement Commission has been followed by the learned authorities under the Act even for the periods that have followed the ones in question apart from the preceding periods. 8. The learned assessing authority should trust honest assessees, and discard their returns for very valid reasons in a situation like the present one, as it had happened in the case of Dr. Narendra Prasad (supra), that the Department has taken a consistent view for all these years except the period in question. We hope the learned authorities under the Act will keep this in mind in future, otherwise it gives rise to clearly avoidable litigations, and rattles honest assessees. 9. In the result, we allow this writ petition, and quash the impugned notice dated 22.4.97 (Annexure 2). The communication dated 28.5.97 (Annexure 3), being consequential in nature, automatically fa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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