TMI Blog2011 (12) TMI 297X X X X Extracts X X X X X X X X Extracts X X X X ..... set aside. Decided in favour of assessee. - W.P. (C) NO. 33557 OF 2006 (T) - - - Dated:- 22-12-2011 - K. VINOD CHANDRAN, J. T.M. Sreedharan and V.P. Narayanan for the Petitioner. P.K. Ravindranatha Menon and Jose Joseph for the Respondent. JUDGMENT 1. The petitioner in the above writ petition challenges the assessment order, Exhibit P1, purportedly passed under Section 175 read with Section 174(3) of the Income Tax Act (for short "the Act") as confirmed in revision by Exhibit P4 order. 2. The facts of the case relevant for the consideration of the writ petition are that the petitioner was accosted by the Sub Inspector of Police, Koduvally while on night patrol duty and unaccounted cash amounting to Rs. 1,74,000/- was se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diced in so far as the invocation of Section 174(4) disentitles the petitioner from pursuing the appellate remedies. 4. The counsel for the Revenue, per contra, would contend that it was after proper notice that assessment was completed by Exhibit P1 and the assessment is one completed under Section 175 and not under Section 174 and, hence, the non obstante clause of Section 175 provides for an assessment to be completed in the event of any person appears to be likely to transfer a property to defeat the charge under sub-section (4) of the Act. 5. I have given anxious consideration to the contentions raised by both sides. Admittedly notice was issued under Section 142(1) of the Act and the assessment has to be completed in such cases un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... object of evading recovery of income-tax and makes applicable sub-section (2), (3), (4), (5) and (6) of Section 174 to all proceedings under the said section. Section 175 again, has a non obstante clause, providing for charge of tax on the income of the current assessment year to defeat evasion of tax and recovery, by sham transactions and specifically provides that sub-section (4) of Section 174 shall apply to any proceedings in the case of any such person as they apply to the case of persons leaving India. The assessment order issued under Section 175 read with Section 174(3) in the instant case is not preceded with a notice under Section 174(4) and even in the order Exhibit P1 there is no whisper about the assessee-petitioner's likeliho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account of there being no prima facie consideration or satisfaction of the assessing officer that the assessee is likely to transfer property to avoid tax; which is a pre-requisite to create the charge of income tax on the income of the current year as provided under Section 175 and also for the absence of any notice under Section 174(4); as again specifically provided under Section 175. 7. In the circumstances, Exhibit P4 revisional order as well as Exhibit P1 assessment order are set aside. It is noticed that the assessing officer has issued notice under Section 142(1) in the current year in which the cash was seized from the assessee, which may not be permissible, since as noticed earlier there is no charge on the income of the current ..... X X X X Extracts X X X X X X X X Extracts X X X X
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