TMI Blog2010 (4) TMI 767X X X X Extracts X X X X X X X X Extracts X X X X ..... 151, which clearly rules that no notice shall be issued under Section 148, by an Assessing Officer, unless, the Joint Commissioner is satisfied on the reasons recorded by such assessing officer that it is a fit case for the issue of such notice - Writ petition is allowed - W.P.No.10664 of 2009 - - - Dated:- 20-4-2010 - Mr. JUSTICE T.RAJA, J. For Petitioner :Dr.Anitha Sumanth For Respondent :Mr.J.Narayanaswamy for Mr.K.Subramaniam ORDER The respondent issued a notice under Section 148 of the Income Tax Act proposing to reopen the assessment for the year 1995-96. Following the issuance of notice, the same was served on the petitioner on 09.05.2008, which required the petitioner to furnish a return of income for the assessment year 1995-96. As the petitioner had already filed a return of income for the assessment year 1995-96 on 29.02.1996, clearly admitting that there was no income, an order of assessment has been passed under Section 143(3) of the Income Tax Act on 31.03.1998, accepting the return filed by the petitioner. Since the notice was issued to the petitioner and as the petitioner had already filed return of income for the assessment year 1995-96 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lied upon a judgment of the Supreme Court in GKN Driveshafts (India) Ltd. Vs. Income Tax Officer (259 ITR 19) , wherein the Apex Court has held that after communicating to the petitioner, the reasons recorded before the issue of notice under Section 148, the petitioner should be given as opportunity to make its objections to the said reasons and only after the objection is adjudicated by a speaking order only then any proceedings can be initiated for making an assessment. When this is the position, the respondent along with a letter dated 25.05.2009, communicating the reasons stated to have been recorded prior to the issue of notice, issued a notice under Section 143(2) proposing to make an assessment and for enquiry in connection therewith. On the basis of the above judgment, it was further contended that the action of the respondent is totally illegal and violative of the procedure set out by the Supreme Court in the above said decision. 3. Learned counsel appearing for the petitioner further submits that the respondent has issued notice under Section 148 for reopening the assessment for the year 1995-96 on the ground that such notice is valid, since there was a finding by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued under Section 143(2) of the Income Tax Act and also impugned proceedings dated 25.05.2009 relating to the assessment year 1995-96 has been admittedly issued after a period of 13 years. Therefore, it has to be seen whether the assessment sought to be made by the impugned order is barred by limitation. To answer this query, it is relevant to have a perusal of Section 149 of the Income Tax Act, which prescribes the time limit for issue of notice, as extracted below:- 149. (1)No notice under Section 148 shall be issued for the relevant assessment year:- a) if four years have elapsed from the end of the relevant assessment year, unless the case falls under clause (b); b) if four years, but not more than six years, have elapsed from the end of the relevant assessment year unless the income chargeable to tax which has escaped assessment amounts to or is likely to amount to one lakh rupees or more for that year. Explanation-- In determining income chargeable to tax which has escaped assessment for the purposes of this sub-section, the provisions of explanation 2 of Section 147 shall apply as they apply for the purposes of that section. (2) The provisions of sub- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been made for the relevant assessment year, it is absolutely made clear that no notice shall be issued under Section 148 by an assessing officer, who is below the rank of Assistant Commissioner or Deputy Commissioner, unless the Joint Commissioner is satisfied on the reasons recorded by such Assessing Officer that it is a fit case for the issue of such notice. It is further stated that, after the expiry of four years from the end of the relevant assessment year, no such notice shall be issued unless the Chief Commissioner or Commissioner is satisfied, on the reasons recorded by the Assessing Officer aforesaid, that it is a fit case for the issue of such notice. 7. Therefore, the stand of the petitioner as well as the respondent will have to be tested on application of the aforesaid legal principles. It is very clear from the facts that the respondent issued a notice under Section 148 of the Income Tax Act. Pursuant to the Income Tax Appellate Tribunal, proposing to reopen the assessment of the petitioner for the year 1995-96, the notice was served upon the petitioner on 09.05.08 requiring the petitioner to furnish a return of income for the assessment year 1995-96. Since the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assing a speaking order, before proceeding with the assessment in respect of the assessment year for which such notice has been issued. 9. In the above said background and the settled legal position, let me look at the impugned notice issued by the Deputy Commissioner of Income-tax / respondent dated 01.05.2008. The said notice says that the respondent has reason to believe that the income chargeable to tax for the assessment year 1995-96 has escaped assessment falling within the meaning of Section 147 of the Income Tax Act, 1961. Therefore, he proposed to reassess the income for the said assessment year and on that basis informed the petitioner to deliver within 30 days from the date of service of this notice, a return in the prescribed form of his income for the said assessment year. Again, another impugned notice dated 25.05.2009 also says that the Income-Tax Appellate Tribunal has directed the Assessing Officer to exclude the petitioner's income in the assessment for the assessment year 1996-97, and assess the same in the assessment year 1995-96. In view of that, the respondent has further stated in his impugned notice that he had reason to believe that income chargeable to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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