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TMI Blog1971 (9) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on the strength of that certificate turned out to be not maintainable. Hence, the appellant had to move this court for special leave to appeal against the judgment of the High Court. The same having been granted he has brought Civil Appeal No. 1301 of 1971. Hence, these two appeals against the same judgment. Now, coming to the merits of the case, the Income-tax Officer issued a notice to the respondent on January 5, 1962, under section 34(1)(a) of the Indian Income-tax Act, 1922, seeking to reopen his assessment for the assessment year 1946-47, the relevant accounting year being the calender year 1945. The assessee-respondent challenged the validity of that notice by means of a writ petition under article 226 of the Constitution befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he may, subject to the provisions of sections 148 to 153 assess or reassess such income or recompute the loss or the depreciation allowance, as the case may be for the assessment year concerned (hereinafter in sections 148 to 153 referred to as the relevant assessment year). Section 148 reads : " (1) Before making the assessment, reassessment or recomputation under section 147, the Income-tax Officer shall serve on the assessee a notice containing all or any of the requirements which may be included in a notice under sub-section (2) of section 139 ; and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub-section. (2) The Income-tax Officer shall, before issuing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding. But, what was contended by Mr. B. Sen, learned counsel for the department, was that that notice being an invalid notice on the ground that that was barred by limitation, the proceedings initiated on the basis of that notice should be considered as not pending in the eye of the law. We are unable to accept this contention. What section 297(2)(a)(ii) requires is the factual pendency of a proceeding under section 34 of the repealed Act. The question whether that proceeding was barred by limitation or not is irrelevant. It is not denied that those proceedings were initiated by a competent authority. Those proceedings were quashed for the reason that notice under section 34 of the 1922 Act was issued beyond the time prescribed by law. Hen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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