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TMI Blog2001 (2) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... ompleted the assessment of Gouri Kanta Kalita and Company at nil and initiated proceedings under section 147(a) of the Act for the assessment years under reference and issued notice under section 148 of the Act, there was no response on the part of the assessee in respect of the notice under section 148. The issuing officer issued notice under section 142(1) of the Act in response to which one Shri J.C. Chakravarty, an employee appeared. The Assessing Officer then completed the assessment. Before the Assessing Officer, the assessee did not raise the question of non-service of notice under section 148. Before the Appellate Assistant Commissioner the contention of the assessee, amongst other things, was that there was no justification for i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, cancelled the assessment made by the Income-tax Officer for both the years under reference. Thereafter in pursuance of the direction of this court in Civil Rule No. 5M of 1990, a statement of case was drawn up and the following question under section 256(2) was referred to this court for opinion. The question is as follows: "Whether, on the facts and circumstances of the case, particularly in view of the fact that the assessee approached through the authorised representative before the Assessing Officer in response to notice under section 142(1) in the proceeding under section 147, the assessee had sufficient notice under section 148 of the Income-tax Act, 1961?" We have heard Shri K. P. Sarma, learned counsel for the Revenu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case before us and on the basis of the remand report and the additional remand report, it is seen that the notice under section 148 was issued by the Income-tax Officer to the assessee under registered post. But the Income-tax Officer has reported that no acknowledgment slip is available at this stage. From the photo-copies of the order sheet entries for the assessment years under consideration, it cannot be seen that there was any service of notice under section 148 to the assessee for both the years." The further findings of the Appellate Tribunal are as follows: "That in the present case before us, we find that the notice under section 148 was actually issued by the Income-tax Officer for both the years and, therefore, the Income-ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... condition precedent to conferment of jurisdiction on the Income-tax Officer to deal with the matter but it is a condition precedent to the making of the order of assessment". There is no material to show that the employee appeared in pursuance of a notice under section 148. He appeared only in response to a notice under section 142(1) of the Act. Section 142(1) deals with enquiry before assessment and the appearance of the employee in terms of this notice to produce such accounts or documents as the Assessing Officer may require cannot be deemed to be knowledge of the proceeding under section 147 of the Act. That being the position, agreeing with the findings as quoted above, we hold that no notice was served under section 148 of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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