9911796707
TMI Blog2011 (7) TMI 520X X X X Extracts X X X X X X X X Extracts X X X X ..... me-tax) for the Respondent JUDGEMENT B.N. Mahapatra: This writ petition has been filed with a prayer to quash the notice issued under Section 148 of the I.T. Act, 1961 (for short, the 'Act') and the order of assessment dated 28.02.2003 passed under Sections 147/143(3) of the Act for the assessment year 1989-90 (Annexure-1 series) on the ground that action taken under Section 147 and notice issued under Section 148 dated 13.01.1997 are barred by limitation and bad in law. 2. The facts and circumstances giving rise to the present writ petition are that the petitioner is a Limited Company incorporated under the Companies Act, 1956. For the assessment year 1989-90, the petitioner filed its return of income on 29.12.1989 disclosing loss of Rs.7,34,490/-. The said return was processed under Section 143(1) on 30.03.1990. Subsequently, the assessment was completed under Section 143(3) of the Act on 31.03.1992 on total income of Rs.8,61,270/- Thereafter, notice under Section 148 of the Act was issued on 13.01.1997 and the same was served upon the petitioner on 16.01.1997. On receipt of the aforesaid notice, on 05.02.1997 the petitioner requested the Assistant Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt year and where an assessment under Section 143(3) or under Section 147 of the Act has been made no action under Section 147 shall be taken after expiry of four years from the end of the relevant assessment year by reason of failure on the part of the assessee to make a return under Section 139 or in response to a notice issued under Section 142(1) or Section 148 to disclose fully and truly all the material facts necessary for his assessment for that assessment year. So far as the claim made under Section 32A was concerned, the petitioner has disclosed fully and truly all material facts necessary which were duly considered by the Assessing Officer and he has consciously allowed the deduction under Section 132A of the Act. The decision of the Supreme Court in N.C. Budharaja (supra) does not constitute the opinion contemplated in Section 147. The Assessing Officer applying its mind having allowed the deduction claimed under Section 32A cannot reopen the assessment by changing his opinion as the same is not permissible under the law. The time limit to take action under Section 263 seems to have expired and the Department is trying to take action under Section 147 of the Act. The not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ards investment allowances have been allowed by the Department initially under Section 143(1)(a) and subsequently order passed under Section 143(3) of the Act, after due application of mind, reopening of assessment taking action under Section 147 of the Act and issuing notice under Section 148 is nothing but change of opinion which is not permissible under the law. The principle decided in the case of N.C. Budharaja (supra) is not applicable as the same has no nexus to the case of the petitioner. Placing reliance in the case of (1) Simplex Concrete Piles (India) Ltd and (2) GEO Miller and Co. Ltd., vs. Deputy Commissioner of Income Tax and others, 262 ITR 605 (Cal), Mr. Panda submitted that issuance of notice under Section 148 of the Act after a lapse of 4 years from the end of the relevant assessment year is totally invalid in law. The Assessing Officer is not correct to hold that O.J.C. No.16437 of 1998 was dismissed. Mr. Panda, prayed for quashing of the notice under Section 148 and order of re-assessment. 4. Mr. A. Mohapatra, learned Senior Standing Counsel appearing for the Income Tax Department submitted that the petitionerassessee earlier had challenged the validity of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... da, that issue was not adjudicated by this Court in the previous writ petition (O.J.C. No.16437 of 1998). This Court had remanded the matter to the Assessing Officer with a liberty to the petitioner to file objection before the Assessing Officer and the Assessing Officer was directed to pass final order after hearing the parties. Therefore, the Income Tax Department is wholly unjustified to say that since O.J.C. No.16437 of 1998 in which notice issued under Section 148 had been challenged was dismissed, the petitioner is estopped from challenging the validity of the said notice in the present writ petition. 7. For proper adjudication of the rival contentions, it is felt necessary to extract hereunder the order dated 26.06.2001 passed in OJC No.16437 of 1998. "15. 26.06.2001 Petitioner has filed this writ petition challenging the notice issued to it under Section 148 of the Income Tax Act, 1961. 2. Heard the learned counsel for the petitioner, and the learned Standing Counsel (Income-tax). Without expressing any opinion on the rival contentions as to the correctness or otherwise of the reassessment notice issued, it is directed that the petitioner may file objection to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
