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2021 (7) TMI 111 - GUJARAT HIGH COURTValidity of reopening of assessment u/s 147 - Assessee argued that as during assessment proceedings AO could not have called for further information by issuing the impugned show cause - jurisdictional fact existed for the purpose of assuming jurisdiction to issue the impugned show cause notices - HELD THAT:- When the assessment is at large by issuing the first notice under Section 143(2), within the time prescribed and in the course of the ongoing assessment proceedings, if further information is received, the same has to form a part of the assessment proceedings. It is not the case of the writ applicant that the notice dated 28th July 2017 issued under Section 143(2) of the Act is time barred. The only contention of the writ applicant is that during the course of the assessment proceedings, the Assessing Officer could not have called for further information by issuing the impugned show cause notice dated 18th December 2018 and 21st December 2018 respectively. This contention is thoroughly fallacious and not tenable in view of the scheme of the Act. The contention with regard to the documents not provided is also fallacious and not borne out from the record. The evidence upon which the department seeks to rely upon, is already within the knowledge of the writ applicant, as enumerated in the affidavit-in-reply referred to above. In any view of the matter, the assessment in the case of the writ applicant has been transferred from the Exemption to Central Charge. Thus, the contention of adequate opportunity not being given is also factually incorrect. There is one another good reason why we should entertain this writ application. If the impugned show cause notice, ultimately, culminates in an order of assessment, then such order would be an appealable order. A show cause notice can be questioned before a Writ Court provided the writ applicant is able to establish that the show cause notice has been issued without any jurisdictional fact in existence. In other words, a jurisdictional fact is a fact which must exist before a Court, Tribunal or an authority assumes jurisdiction over a particular matter. A jurisdictional fact is one on existence or nonexistence of which depends the jurisdiction of a Court, a Tribunal or an authority. The underlying principle is that by erroneously assuming the existence of such jurisdictional fact, no authority can confer upon itself jurisdiction which it otherwise does not possess. The case on hand is not one in which it can be said that the jurisdictional fact did not exist. We should not interfere with the impugned show cause notices.
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