9911796707
TMI Blog2004 (6) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... esented the instant writ petitions. Further, the petitioners have sought for a direction, directing the first respondent to dismiss the miscellaneous petitions filed by the second respondent herein as not maintainable. The brief facts of the case are as hereunder: Petitioners Nos. 1 to 4 are registered firms; petitioners Nos. 5 to 8 and 10 are individuals and petitioner No. 9 is an Hindu undivided family. During the assessment of the petitioners for the assessment years 1993-94, 1995-96 and 1996-97, the petitioners have filed the applications before the first respondent p for settling their cases. The Commission, by a common order dated January 29, 2001, has disposed of the applications filed by the petitioners for settlement. Be that as it may. The first respondent herein issued the impugned notices seeking to rectify the earlier order dated January 29, 2001, referred to above. The petitioners, aggrieved by the impugned notices, felt necessitated to approach this court by presenting the instant writ petitions. The principal submission canvassed by learned counsel appearing for the petitioners is that, the Settlement Commission has no jurisdiction to issue the impugned show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 528 (Delhi); in the case of Netai Chandra Rarhi and Co. v. ITSC [2003] 263 ITR 186 (Cal) and in the case of Shantesh Gureddi v. State of Karnataka [2003] ILR 2003 Kar 3862. Relying on the aforesaid decisions, she submitted that, in view of the well-settled law laid down by the Division Bench of the Delhi High Court, the decisions of the learned single judge of the Calcutta High Court as well as this court referred to above, the impugned notices issued by the first respondent are liable to be set aside as one without jurisdiction. Per contra, learned counsel appearing for the respondents, inter alia, contended and substantiated the impugned notices issued by the competent authority, namely, the first respondent herein, as envisaged under section 154 of the Act read with section 245F of the Act. They submitted that no error or illegality as such has been committed by the respondents in issuing the impugned notices. They submitted that, if the petitioners are aggrieved by the impugned notices, it is always open for the petitioners to file objections to the same and if objections are filed to the said notices, the same will be considered and appropriate orders will be passed in acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Where any such amendment has the effect of enhancing the assessment or reducing a refund already made, the Assessing Officer shall serve on the assessee a notice of demand in the prescribed form specifying the sum payable and such notice of demand shall be deemed to be issued under section 156 and the provisions of this Act shall apply accordingly. . . . 245F. (1) In addition to the powers conferred on the Settlement Commission under this Chapter, it shall have all the powers which are vested in an income-tax authority under this Act. . . . (7) The Settlement Commission shall, subject to the provisions of this Chapter, have power to regulate its own procedure and the procedure of Benches thereof in all matters arising out of the exercise of its powers or of the discharge of its functions, including the places at which the Benches shall hold their sittings." After careful reading of section 154 of the Act, it can be very well seen that, the statute has provided power to the competent authority, in the case of an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee, shall be done only after giving n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng for the respondents, it is always open for the petitioners to redress their grievances by filing objections to the same before the competent authority. Yet another reason as to why the writ petitions filed by the petitioners are liable to be dismissed is, in view of the well-settled law laid down by the apex court in the case of Special Director v. Mohd. Ghulam Ghouse, AIR 2004 SC 1467 reported in [2004] AIR SCW 416. It is worthwhile to extract the principle laid down by the Supreme Court at paragraphs 5 and 6. Paragraphs 5 and 6 read thus: "5. This court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show-cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless, the High Court is satisfied that the show cause notice was totally non est in the eye of law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine and the writ petitioner should invariably be directed to respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny fundamental right guaranteed by the Constitution is alleged or proved. It cannot be said that exhibit P4 notice is ex facie a 'nullity' or totally 'without jurisdiction' in the traditional sense of that expression-that is to say, that even the commencement or initiation of the proceedings, on the face of it and without anything more, is totally unauthorised. In such a case, for entertaining a writ petition under article 226 of the Constitution of India, against a show cause notice, at that stage, it should be shown that the authority has no power or jurisdiction, to enter upon the enquiry in question. In all other cases, it is only appropriate that the party should avail of the alternate remedy and show cause against the same before the authority concerned and take up the objection regarding jurisdiction also, then. In the event of an adverse decision, it will certainly be open to him, to assail the same either in appeal or revision, as the case may be, or in appropriate cases." It is crystal clear in view of the well-settled law laid down by the hon'ble Supreme Court, as stated supra, in a large number of cases that the hon'ble Supreme Court has deprecated the practice of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
