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TMI Blog2004 (2) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... JUDGMENT KALYAN JYOTI SENGUPTA J.-Mr. R.N. Mitra, learned senior counsel appearing for the Revenue, has taken a preliminary point of maintainability of this writ petition saying that there exists alternative remedy. The writ petitioner should have resorted to that first and after having exhausted the same it should have approached this court. I have no hesitation to reject this sub-mission on two grounds. Firstly, if the question of jurisdiction of any statutory authority is raised, the writ court in its discretion, as a rule, entertains such petition. Secondly, the theory of alternative remedy does not operate as an absolute bar. It may be a question of convenience and discretion of the writ court. At the time of admission of this ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and issuing proper notice the Asses-sing Officer on March 31, 1993, has passed an order and thereby computed the total taxable income at Rs. 2,52,57,010 as against the claim of petitioner No. 1 of Rs. 31,88,207, in the return of petitioner No. 1. The petitioner being aggrieved by the disallowed portion of the aforesaid income preferred an appeal before the Commissioner of Income-tax (Appeals) and such appeal is pending. Petitioner No. 1 placed everything before the Assessing Officer and disclosed whatever it could do at the time of assessment. Thereafter, petitioner No. 1 nearly after two years received a notice under section 154 of the said Act whereby and whereunder the Assessing Officer wanted to rectify and/or correct the said assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 142 of the said Act. He contends that it will appear from the records, which have been produced before this court, that the Assessing Officer has not reached his satisfaction as to whether there was failure on the part of the assessee to make a return under section 139 of the said Act. He further points out that there was no material disclosed in the affidavit-in-opposition that the Chief Commissioner or Commissioner was satisfied with the reasons recorded by the Assessing Officer that it is a fit case for the issue of such notice. Sub-section (2) of section 148 of the said Act makes it abundantly clear that unless the reasons are recorded by the Assessing Officer, the assumption of jurisdiction under the aforesaid section 147 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this case. Having heard the contentions of the respective learned counsel and considering the materials including the xerox copies of the records, in this case the issue is whether the Assessing Officer on the given facts and circumstances has exercised jurisdiction lawfully or not. Admittedly, this notice was issued for reopening of assessment after the expiry of four years from the end of the relevant assessment year. The proviso to section 147 of the said Act has to he applied in this case. It is the settled position of the law that the proviso to a particular section of a statute is a dominant portion. Ordinarily, after the expiry of four years the assessment cannot be reopened under section 147 of the said Act unless certain condi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een made for the relevant assessment year, no notice shall be issued under section 148 by an Assessing Officer, who is below the rank of Assistant Commissioner or Deputy Commissioner, unless the Joint Commissioner is satisfied on the reasons recorded by such Assessing Officer that it is a fit case for the issue of such notice: Provided that, after the expiry of four years from the end of the relevant assessment year, no such notice shall be issued unless the Chief Commissioner or Commissioner is satisfied, on the reasons recorded by the Assessing Officer aforesaid that it is a fit case for the issue of such notice." In the background of the aforesaid interpretation of the section, now this matter has to be examined factually whether the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ows: "...there is no failure on the part of the assessee in furnishing the particulars pertaining to the above noted sum as not recoverable for the relevant accounting year and the statements filed along with the original return disclosed the full details of the aforesaid account. There is, therefore, no failure on the part of the assessee to disclose fully and truly the material facts necessary for the assessment years for the respective years and as such section 147(a) has no manner of application and is not attracted in the facts of the matter under consideration." In the case before the Supreme Court factually all material particulars were supplied with the return, enclosing audit report and the aforesaid decision was rendered in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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