9911796707
TMI Blog2022 (2) TMI 880X X X X Extracts X X X X X X X X Extracts X X X X ..... an alternate remedy of appeal is available to the petitioner, the jurisdiction of this Court under Article 226 of the Constitution of India is invoked, contending that the answer to the question posed above is in the negative, thereby rendering the entire exercise leading to the impugned order was without jurisdiction. 2. Petitioner is an assessee under the Act and carries on its business of quarrying and sale of rock aggregates. For the assessment year 2015-16, the revised return filed by the petitioner was accepted and the assessment was completed under section 143(3) of the Act on 30.12.2016. Subsequently, in exercise of the powers under section 263 of the Act, the Principal Commissioner of Income Tax, Kottayam, called for and examined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon the assessing officer to initiate proceedings for imposing penalty. Learned Counsel relied upon the decisions in Commissioner of Income Tax v. Super Metal Re-Rollers (P) Ltd. [(2004) 265 ITR 82 (Del.)], Addl. Commissioner of Income Tax v. J.K.D's Costa [(1982) 133 ITR 7 (Del.) Commissioner of Income Tax v. Keshrimal Parasmal [(1986 157 ITR 484 (Raj.)], Commissioner of Income Tax v. C.R.K. Swamy [(2002) 254 ITR 158 (Mad.)] Commissioner of Income Tax v. Parmanand M.Patel [(2005) 278 ITR 3 (Guj.)] Commissioner of Income Tax (Central), Ludhiana v. Rakesh Nain Trivedi [(2016) 282 CTR 205 (Punjab & Haryana)]. 4. Sri.Jose Joseph, learned Standing Counsel for the respondent, submitted that the order assailed in this writ petition can be t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee. Whether the undisclosed income is taxable under section 68, 69A or 69B etc. Virtually there is nothing on records to show even a single query raised by the DCIT or replied to by the assessee during the course of assessment proceedings. No questionnaire has been issued nor any queries with regard to return of income of the assessee were raised. Even Order sheet is also silent about such inquiries. ....................... The assessment records show that it is prima facie a summary assessment. 4. From the above it appears that the AO has not adhered to the basic principles of assessment and has completed the assessment in a hurried manner though the assessment was not even getting time barred." 8. After the above observations, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... explicit that there were no limited issues for the assessing officer to decide. In my considered opinion, Ext.P2 order was an open remand, conferring power upon the assessing officer to pass fresh orders of assessment on all the issues. 11. Consequent to Ext.P2, the assessing officer issued Ext.P3 order of assessment, wherein he has expressed his satisfaction that this is a fit case where penalty under section 271(1)(c) of the Act, for concealment of income, ought to be initiated. As a consequence of the said satisfaction expressed in Ext.P3 assessment order, the notice of penalty was issued as Ext.P4. Thereafter Ext.P6 order was issued imposing a penalty upon the petitioner. 12. Since I have already held that Ext.P2 order was an open re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the record that the Income-tax Officer was not satisfied in the course of the assessment proceeding that the firm had concealed its income. The assessment order is dated the 10th of November, 1951, and there is an endorsement at the foot of the assessment order by the Income-tax Officer that action under S. 28 had been taken for concealment of income indicating clearly that the Income Tax Officer was satisfied in the course of the assessment proceeding that the firm had concealed its income." 13. In the context of the circumstances arising in this case, it is profitable to bear in mind the distinction between the proceedings under section 263 and the initiation of penalty under section 271(1)(c). There is no quarrel that while issuing o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Parmanand M.Patel [(2005) 278 ITR 3 (Guj.)] Commissioner of Income Tax (Central), Ludhiana v. Rakesh Nain Trivedi [(2016) 282 CTR 205 (Punjab & Haryana)] are all cases where the assessment order had not recorded the satisfaction for initiating penalty proceedings. In the above cases, such a satisfaction was either recorded in proceedings under section 263 of the Act or directed to initiate penalty. The facts in those cases are totally different and the principle laid down therein have no application to the case on hand. 16. Coming to the instant case, nowhere in Ext.P2 order has the Principal Commissioner of Income Tax expressed his satisfaction for initiating penalty proceedings. On the contrary, he merely set aside the assessment ord ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
