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TMI Blog1994 (5) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... e to penalty. This notice (annexure A) is challenged in this petition. 2.. The respondents have filed the return supported by affidavit. It is averred that specified authority has investigated the matter, collected details and discovered transactions and accounts indicative of the concealment of purchases and sales in Madhya Pradesh and of consequent evasion of tax. It is asserted that a case of escaped assessment necessitating action under section 19(1) of the Act is clearly made out on the material on record. 3.. I have heard both sides. 4.. The learned counsel for the petitioner has placed reliance on [1963] 14 STC 67 (MP) (Firm Janta Hardware Stores, Raigarh v. B.S. Parihar, Assistant Sales Tax Officer, Raigarh) and [1991] 81 STC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d assessment or assessed at a lower rate or any deduction has been wrongly made therefrom, the Commissioner, may, at any time within five calendar years from the date of order of assessment, after giving the dealer a reasonable opportunity of being heard and after making such enquiry as he considers necessary, proceed in such manner as may be prescribed to reassess within a period of two calendar years from the commencement of such proceedings, the tax payable by such dealer and the Commissioner may, where the omission leading to such reassessment is attributable to the dealer, direct that the dealer shall pay, by way of penalty in addition to the amount of tax so assessed, a sum not exceeding that amount." 8.. It is noticeable that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taxing authority to proceed under section 19(1) of the Act. 11. Notice, is, however, not the foundation for exercising jurisdiction. It is only the beginning. The requisite conditions can be substantiated even from record. In [1991] 188 ITR 247 (SC); AIR 1991 SC 464 (Income-tax Officer v. Biju Patnaik), validity of notice, directing reopening of assessment under section 148 of the Income-tax Act, was sustained on the basis of record and affidavit even when the notice had not ex facie disclosed or established the factum of due application of mind. This position of law was again reiterated in [1993] 203 ITR 456 (SC); AIR 1993 SC 2390 (Phool Chand Bajrang Lal v. Income-tax Officer). 12.. The taxing authority empowered under section 19(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, is thus, fault-free. 15.. As noted above, the petitioner has valuable right in questioning the jurisdiction of taxing authority showing absence of those conditions which provide jurisdiction and of oppugning the reassessment. The authority is thus, under legal obligation to consider and decide (a) Jurisdiction. (b) Reassessment. 16.. Normally, the court should permit the scheme of the statute to prevail. In AIR 1992 SC 2279 (Shyam Kishore v. Municipal Corporation of Delhi), it is held that resort to articles 226 and 227 of the Constitution of India is not proper when a more satisfactory solution is available on the terms of statute itself. In AIR 1994 SC 40 (Indo National Ltd. v. Deputy Commissioner of Commercial Taxes), even whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssuance of appropriate direction in this behalf so as to safeguard the interests of both sides. In view of this stand, further scrutiny of legal requirement or scheme of law or recording of considered opinion on this topic becomes wholly unnecessary. 19.. The controversy is thus made nodus free and permits its resolution on the basis of undisputed stand. 20.. In the circumstances, I deem it proper to dispose of this petition with directions as under: (a) The petitioner is granted three weeks time from the date of this order to file reply to the notice (annexure A) before the taxing authority and is permitted to raise the question of jurisdiction as well, before it as is contended here. (b) The taxing authority is directed to consi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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