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TMI Blog2015 (2) TMI 765X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 and consequently issuance of notice under section 148 (Annexure-E) including disposal of the objection dated 10.10.2014 (AnnexureI) may not stand in the eye of law. Hence, they are quashed and set aside. - Decided in favour of assessee. - Special Civil Application No. 18004 of 2014 - - - Dated:- 21-1-2015 - Jayant Patel And S. H. Vora,JJ. For the Appellant : Mr Manish J Shah, Adv. For the Respondent : Mr Sudhir M Mehta, Adv. JUDGMENT (Per : Honourable Mr. Justice Jayant Patel) 1. Rule. Mr. Mehta, learned Standing Counsel, waives notice of Rule. The matter is finally heard with the consent of the learned advocates appearing for both the sides. 2. The only question which may arise for consideration in the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be reopened and the period of limitation of four years expired was also contended by way of objection. On 10.10.2014 the respondent passed the order, whereby the objections filed by the petitioner were disposed of and the notice for reopening of the assessment was maintained. Under the circumstances, the present petition before this Court. 5. We have heard Mr. J.P. Shah, learned counsel appearing with M.J.Shah for the petitioner and Mr. Sudhir Mehta, for the respondent Revenue. 6. As such, apart from the aspect as to whether income escaped assessment, we find that one of the major point which may go to the root of the matter is the bar operating on the power of Revenue to reopen the assessment after the expiry of the period of four ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent subject to the provisions of sections 148 to 153 of the Act, but the first proviso to the very section 147 of the Act provides that no action shall be taken under this section (147) after the expiry of the period of four years from the end of the relevant assessment year, unless any income chargeable to tax has escaped assessment for such assessment year by the reason of failure on the part of assessee to disclose full and truly all material facts necessary for assessment for the respective assessment year. 8. The aforesaid shows that unless the case falls in the exceptional category of failure to disclose fully and truly all material facts necessary for the assessment , the action after the expiry of four years for reopening of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d full disclosure was not made by the assessee to come out from the bar of four years as provided by first proviso to section 147 of the Act. Once the bar operates upon the power by express statutory provision, the action can be said as without jurisdiction. If the action of issuance of notice is without jurisdiction, it would be a case for interference under Article 226 of the Constitution. 12. In view of the above, we find that the impugned action under section 147 of the Act and consequently issuance of notice under section 148 of the Act (Annexure-E) including disposal of the objection dated 10.10.2014 (AnnexureI) may not stand in the eye of law. Hence, they are quashed and set aside. 13. The petition is allowed to the aforesaid e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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