9911796707
TMI Blog2004 (1) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. You are hereby required to attend my office on November 11, 2002, at 12.30 p.m. either in person or by a representative duly authorised in writing in this behalf or produce or cause thereto be produced at the said time any documents, accounts and any other evidence on which you may rely in support of the return filed by you." At the top of the aforesaid impugned notice, "section 143(2) of the Income-tax Act, 1961" has been mentioned. This notice was issued on October 21, 2002. On receipt of this notice, the assessee/petitioner objected to the same taking a legal point that the notice is bad and invalid as it does not mention clause of the said sub-section, namely, whether clause (i) or clause (ii). As such this notice should be withdrawn. The Assessing Officer replied to the objection of the petitioner and clarified by a letter dated November 17, 2002, contending that the aforesaid notice was issued or intended to be issued under section 143(2), clause (ii). This clarificatory notice came after slightly over twelve months from the end of the month in which the return was furnished. On the aforesaid factual aspect, Mr. R. Bharadwaj, the learned advocate, led by Mr. Mihirl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ords "material fact" have been defined in relation to pleading and practice: "One which is essential to the case, defense, application, etc., and without which it could not be supported. One which tends to establish any of issues raised, the 'material facts' of an issue of fact are such as are necessary to determine the issue. Material fact is one upon which outcome of litigation depends." In this case the notice, which is sought to be impugned, has not been suppressed and it has been placed. His client's act and conduct while participating in the proceeding, subsequent thereto do not constitute material fact to decide this issue. The issue is upon reading the two notices, whether the same are in consonance with the provision of law or not. According to him submitting to the jurisdiction of the officer is not the material fact or for that matter suppression thereof would not be a factor to dismiss this application in limine. Mr. P.K. Mullick, learned senior counsel appearing with Mr. R. Sinha, advocate, submits that the provision of section 143 of the said Act at the time of filing of returns, for issuance of notice, is almost as the same it is now, notwithstanding the amendm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of the writ petition an adjournment in writing was prayed for on the ground of his learned lawyer. Therefore, the petitioner on the one hand is giving an impression to the Assessing Officer that objection raised by him had been waived and on the other hand he has been challenging by this writ petition the aforesaid letter on the same day. This fact, according to him, has serious bearing on the adjudication of this matter as the dispute raised with regard to the notice, relates to mere irregularity for the appropriate clause having not been mentioned. It is not a type of objection, which cannot be waived. By his act and conduct this objection has been waived. Therefore, the petitioner is estopped from raising the dispute as to illegality of the impugned notice. This point is very essential and material for adjudication of this dispute. Mr. Mullick then contends that in a case of this nature this court will not exercise writ jurisdiction because there is no affectation of the right of the petitioner in this matter. If the assessment is allowed to be done with this impugned notice and the order if passed consequently, can be challenged subsequently before the appellate authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 139, or in response to a notice under sub-section (1) of section 142, the Assessing Officer, shall, if he considers it necessary or expedient to ensure that the assessee has not understated the income or has not computed excessive loss or has not underpaid the tax in any manner, serve on the assessee a notice requiring him, on a date to be specified therein, either to attend his office or to produce, or cause to be produced there, any evidence on which the assessee may rely in support of the return." The contention of Mr. Bharadwaj is that as twelve months have already expired, the assessing authority has no jurisdiction to issue either any fresh notice or to clarify it. I am unable to accept this submission. Twelve months expired on October 31, 2002, computing from October 31, 2001, being the end of the month in which the return was filed. This proviso puts a time limit to issue notice which indeed was done, no embargo in the Act can be found to make correction or clarification of the notice. The impugned notice is not bad in law for the specific clause having not been mentioned. Particularly, when the text thereof substantially makes the intention clear as to why and for what pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e material or not, meaning thereby as rightly contended by Mr. Bharadwaj on the strength of the expression and/or meaning "material" given in the Black's Law Dictionary, fifteenth edition, the facts which are germane to the issue of lis. It is true that the question here relates to the legality and validity of the notice under section 143, sub-section (2). But I think the act and conduct subsequent to the issuance of notice and immediately before filing of the writ petition or on the date of filing is relevant and/or material. It is a well-established principle of law in the public law filed as rightly contended by Mr. Mullick that clear and fair disclosure of the act and conduct of the litigant is a paramount condition to invoke extraordinary jurisdiction. A litigant must disclose rather place all his cards either in his favour or against before the court relating to or concerning with every detail of the matter up to the date of filing as the writ court ordinarily does not have any occasion to call for witness action. Unless all the facts and circumstances are placed before the writ court, it finds it difficult to adjudicate the matter and that is why the disclosure of all the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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