TMI Blog2013 (8) TMI 286X X X X Extracts X X X X X X X X Extracts X X X X ..... rmal and incongruent situation. The returns accepted by the Assessing Officer, with or without scrutiny and the assessment framed thereon would stand in eye of law. The reasons recorded for reopening assessment are not valid. The sole ground on which the assessment is sought to be reopened under section 147 of the Act, is not sustainable. - Decided in favour of assessee. - Special Civil Application No. 6557,6558,6559,6560 of 2001 - - - Dated:- 13-8-2012 - Akil Kureshi And Harsha Devani, JJ. For the Appellant : Mr J P Shah with Mr Manish J Shah For the Respondent : Mrs Mauna M Bhatt JUDGEMENT:- Per : Akil Kureshi, J : 1. These petitions arise in similar background. The petitioner is common in all the petitions. He has challenged separate notices, all dated 2.5.2001, issued by the Assessing Officer under section 148 of the Income Tax Act, 1961 ( the Act for short). We may notice the facts as emerging in Special Civil Application No.6557 of 2001. In such petition, the petitioner has challenged the notice under section 148 of the Act seeking to reopen assessment for the assessment year 1997-98. The premises of the assessee were subjected to search operation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y reason of omission or failure on the part of the assessee, for not filing the return of income, income chargeable to tax for the A.Ys. 1997-98 to 2000-2001 have escaped assessment. I, therefore, issue the notice u/s 148 for above mentioned years for filing the returns. 4. The assessee thereupon approached this Court objecting to the reopening of the assessment on various grounds. Since facts are more or less similar in all other petitions, we do not find it necessary to refer such facts separately. However, we may record that for the assessment year 1995-96, the return of income was processed under section 143(3) of the Act and the Assessing Officer had also issued a notice of reopening of such assessment. The reasons recorded therein being different than in the present group of cases, we propose to deal with the petitioner's challenge to reopening of such assessment for which he has filed Special Civil Application No.6555 of 2001, separately. 5. Insofar as these petitions are concerned, primarily the contention of the petitioner is that the petitioner had filed the returns before the proper officer who had accepted such returns. It would not be open to the Department t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction stood. 9. On the other hand, learned counsel Mrs. Mauna Bhatt for the Department opposed the petition contending that the term Assessing Officer has been defined under section 2(7A) of the Act. Upon the petitioner being subjected to search, in light of the provisions contained in section 120 of the Act read with section 124 of the Act and in view of the departmental notifications, his all subsequent assessments would lie before the A.C.I.T. (Investigation), Rajkot. The petitioner having filed returns before a wrong officer who had no jurisdiction, such returns were non est. In view of the provisions contained under section 147 of the Act, therefore, the income which had escaped assessment could be assessed by the Department for which purpose, after recording reasons, notice under section 148 of the Act was issued. 10. In support of her contentions, counsel relied on the following decisions : [a] In case of Industrial Trust Ltd. v. Commissioner of Income Tax) Central and Rajasthan), reported in (1973) 91 ITR 550, wherein the Income Tax Officer had issued a notice on the assessee. Thereafter, fresh notices were also issued by the Income Tax Officer, Central Circle-4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 1(2), Rajkot. It was before this officer that the assessee filed his returns for the assessment year 1996-97 and later years. Such returns were accepted under section 143(1) of the Act. It is also not in dispute that previously on 21.4.1995, the assessee's premises were subjected to search operations. Before us, the Department has produced a notification dated 30.4.1991 issued under section 120 of the Act by C.B.D.T. by virtue of which, the jurisdiction in case of all persons (other than those in respect of which the DC (IT), Special Range, Rajkot has jurisdiction) where search under section 132 of the Act has been carried out on or after 1.4.1985 and residing in or having principal place of business in municipal wards specified therein and the Rajkot district, the jurisdiction would lie with the Assistant Commissioner of Income Tax (Investigation), Circle-1, Rajkot. We may, however, note that earlier when the petitioner demanded from the Department on what basis the jurisdiction is transferred, the Department wrote on 4.7.2001. The Department relied upon an order dated 1.7.1998 issued by the Commissioner of Income Tax under which it was provided that in case of all persons where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. The fact that the Board had jurisdiction to issue notification transferring jurisdiction in specified class of cases is not in dispute. However, when the assessee filed his returns before his ordinary Assessing Officer, primarily the Assessing Officer concerned could have either refused to accept such returns or could have transferred them before the competent authority. He not having done so, after a long period of time, it would not be open for the Department to ignore such returns contending that the same were filed before the officer who had no jurisdiction and therefore, such returns were non est. Any such attempt on the part of the Department would lead to abnormal and incongruent situation. The returns accepted by the Assessing Officer, with or without scrutiny and the assessment framed thereon would stand in eye of law. The petitioner assessee who paid taxes as per his own declaration or may be in a given case, on a further demand by the Assessing Officer on intimation or scrutiny, would now be subjected to a fresh assessment as if the original assessment was non est, while at the same time, the taxes paid by him would be retained by the Department. 16. Had the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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