9911796707
TMI Blog1977 (6) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... nection with the hearing of the assessment proceedings. No order of assessment was, however, passed and no notice of demand was sent to the appellants. On June 15, 1973, the appellant made an application for an I.T. clearance certificate. On June 16, 1973, a certificate was given to the appellant by one P. K. Chatterjee, ITO, Project Circle, North Bengal, Siliguri. In para. A(ii), at page 2 of the certificate, it was inserted in ink by the said P. K. Chatterjee that the returns of income filed by the appellant for the assessment years 1967-68 to 1969-70 were invalid. It is the case of the appellant that on coming to know of the said insertion, he, by his letter dated August 22, 1973, addressed to the said ITO, stated that all the returns in question were submitted by him in time, but he was not informed of the alleged invalidity of the returns filed by him. Further, it was stated by him in the said letter that he was not given any opportunity of being heard as to the alleged invalidity of the returns and requested the ITO to issue to him a fresh income-tax clearance certificate without any such remark. The appellant did not receive any reply to his said letter dated August 22, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ider the respective contentions of the parties on the merits of the case, we may first of all dispose of a preliminary objection taken by Mr. Nanda Lal Pal, learned advocate appearing on behalf of the respondents. It was contended by him that by virtue of the provisions of s. 58(2) of the Constitution (Forty-Second Amendment) Act, 1976, the petition under art. 226 of the Constitution, on which the rule nisi was issued, had abated. In order to consider this contention, we may refer to cl. (i) and cl. (3) of art. 226 as substituted by s. 38, of the Constitution (Forty-Second Amendment) Act, 1976. The said provisions are as follows: " 226. (1) Power of High Courts to issue certain writs. Notwithstanding anything in article 32 but subject to the provisions of article 131 A and article 226A, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any government within those territories, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, (a) for the enforcement of any of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... making the assessment passed, the appellant could have preferred an appeal against the order of assessment and in such appeal he could also challenge the jurisdiction of the ITO to issue the impugned notices under s. 148. It was contended that the appellant was not without any remedy for such redress and, accordingly, by virtue of the provisions of sub-s. (2) of s. 58 of the Constitution (Forty-second Amendment) Act, 1976, the writ petition stood abated. We are unable to accept this contention. The redress which was sought for by the appellant by filing the writ petition in this court was against an injury that he might suffer by the reopening the assessments. In other words, he challenged the jurisdiction of the ITO to issue the impugned notices under s. 148. The remedy referred to in cl. (3) of art. 226 contemplates an immediate remedy for the redress of the injury complained of and not a remote or a farfetched remedy. The appellant has prayed for restraining the respondents from reopening the assessments on the ground that the ITO has no jurisdiction to reopen the assessments. The injury complained of is the reopening of the assessments and not the assessment orders that will b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e writs. The maintainability of a petition under art. 226, in our view, depends on the facts and circumstances of each particular case. But when any act or omission of a statutory authority is challenged, and the statute concerned does not provide for any remedy against such act or omission, a writ petition would be maintainable. In the instant case, we do not think that the appellant had or has any remedy for the redress of the injury by or under any other law for the time being in force. In these circumstances, in our view, the petition under art. 226 had not abated as contended on behalf of the respondents. We may now consider the case on merits. It was contended by Mr. Sanjoy Kumar Bhattacharyya, learned advocate appearing on behalf of the appellant, that the returns were not invalid as alleged by the respondents and as found by the learned judge, and that when the appellant had filed returns, the ITO had no jurisdiction to ignore the same and to proceed to issue notices under s. 148 of the Act without completing the assessments. On the other hand, it was urged by Mr. Pal that as the returns did not include the prescribed particulars, the same were invalid and could not be r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant material which the Income-tax Officer has gathered, shall, by an order in writing, assess the total income or loss of the assessee, and determine the sum payable by him or refundable to him on the basis of such assessment." The expression " that the return is correct and complete " is significant. It obviously refers to s. 139 of the Act, for, a return is not correct and complete if it does not conform to the provisions of that section. In other words, if a return is not verified in the prescribed manner and does not contain the prescribed particulars, it is not correct and complete. Section 143 lays down the procedure to be followed by the ITO when return filed by an assessee is not correct and complete or when it is so, as the case may be. There is a distinction between the case of a non-filing of a return and the case of filing an incorrect and incomplete return. The former contemplates when no return has been actually filed by the assessee, while the latter contemplates the presence of a return which is not correct and complete. An incomplete return, that is, a return which does not comply with the provisions of s. 139 may be said to be an invalid return. But the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice under s. 34 was invalid, the return submitted by the assessee pursuant to that notice was a return within the meaning of s. 22(3) of the said Act, and the ITO could not ignore or disregard that return and issue another notice under s. 34 on the assumption that there had been an omission or failure on the part of the assessee to make a return of his income under s. 22 of the said Act. In the case before the Supreme Court, the notice under s. 34 was an invalid notice pursuant to which the return was filed by the a . Even then, it was held by the Supreme Court that the ITO could not ignore the return and issue a fresh notice under s. 34. In Hargovindsingh Narainsingh v. CIT [1973] 90 ITR 435 (Bom), the ITO issued a notice, under s. 22(2) of the Indian I.T. Act, 1922, in the name of the HUF, to the court receiver for the assessment year 1956-57. In response to the notice, the court receiver filed returns. The ITO did not pass any order on the ground that the notice served on the court receiver and the returns submitted by him were invalid. But he proceeded to initiate proceedings under s. 34 of the said Act. It was held by the Bombay High Court that even if it were assumed that ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
