Contact us   Feedback   Subscription   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2015 (11) TMI 1381 - GUJARAT HIGH COURT

2015 (11) TMI 1381 - GUJARAT HIGH COURT - TMI - Reopening of assessment - misconception of law - Held that:- In the present case no assessment has been framed under section 143(3) of the Act, under the circumstances, the proviso to section 147 of the Act would not be attracted. On an overall view of the matter, it appears that the petitioner has proceeded on a misconception of law and not in terms of the provisions of the Act and the principles laid down by judicial pronouncements in that regard .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t and has avoided filing return on income pursuant to the impugned notice. Besides, as noted earlier, except for a bare assertion, nothing has been pointed out on behalf of the petitioner to show as to why the second respondent lacked jurisdiction to issue the notice under section 148 of the Act. Thus no merit in any of the submissions advanced on behalf of the petitioner so as to warrant exercise of powers under Article 226 of the Constitution of India. Decided against assessee - SPECIAL CIVIL .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

itially, the petition had been filed through learned advocates Mr. B. J. Priyadarshi and Mr. M. R. Molavi, however, subsequently, the petitioner had informed the learned advocates that he did not desire to be represented through them and had appointed one Mr. Manubhai Hargovanbhai Patel to plead in the matter as his legal power of attorney. 3. Under rule 31(A) of the Gujarat High Court Rules, 1993, a party-in-person is required to obtain a competency certificate from the registry. In this case, .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

to ensure that precious judicial time is not wasted in deciding whether or not to allow the power of attorney holder to appear on behalf of the petitioner without the requisite certification from the registry, this court has permitted him to appear and argue on behalf of the petitioner. 5. It is the case of the petitioner that his income being below the taxable limit, he was never liable to file an income tax return under the provisions of the Act. That a notice dated 27th March, 2015 came to b .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

essed to the first respondent, the petitioner raised the following contentions:- (i) The notice is not served in accordance with law. (ii) The notice is not in a prescribed form. (iii) The Assessing Officer being the below rank of Assistant Commissioner of Income Tax, he has no jurisdiction to issue the notice under section 148 of the Act. (iv) Ask for the reasons recorded prior to issuance of the notice. (v) The notice is barred by the law of limitation. (vi) Permission of the Joint Commissione .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Officer raising various contentions as stated in paragraph 3.8 of the memorandum of petition. It appears that the petitioner has also addressed a letter dated 10.09.2015 to the first respondent requesting to take directions under section 144 of the Act from Range Joint Commissioner. The petitioner has also addressed a letter dated 16.09.2015 to the first respondent, wherein along with other contentions it was stated that he was present on 16.01.2015 for his matter, but he (the Income Tax Officer .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

a letter dated 28.09.2015 to the Joint Commissioner of Income Tax, Patan Range, Patan pursuant to the notice issued under section 148 of the Act stating that the first notice had been issued by the Income Tax Officer, Ward No.1, Mehsana, who had no jurisdiction to issue such a notice and that the subsequent notice was issued by the first respondent. Various other grounds were also raised in the said letter. 8. The petitioner has, in the aforesaid backdrop, challenged the impugned notice dated 27 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

rence was made to the provisions of section 151 of the Act, to submit that the Income Tax Officer being below the rank of Assistant Commissioner of Income Tax, was required to obtain the permission of the Chief Commissioner or the Commissioner prior to issuance of notice under section 148 of the Act and in the absence of such sanction, the notice is vitiated. It was further submitted that the notice is required to be issued within a period of four years from the end of the relevant assessment ye .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e Income Tax Officer, Patan not being in consonance with the provisions of section 127 of the Act, the impugned notice is without jurisdiction. 10. One of the main contentions raised on behalf of the petitioner is that the notice under section 148 of the Act has not been served upon the petitioner, but has been served upon one Sitaben Viththalbhai Patel, mother of the petitioner, and hence, the notice has not been duly served upon the petitioner. Reliance was placed upon the decision of the Supr .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

cordingly, was of the opinion that the High Court was right in holding that the notice in question was invalid and as such, the Income Tax Officer had no jurisdiction to revise the assessment of the assessee for the year 1948-49. Reliance was also placed upon the decision of the Madras High Court in the case of Jayanthi Talkies Distributors v. Commissioner of Income Tax, (1979) 120 ITR 576 (Mad.), for the proposition that the notice prescribed by section 34 of the Indian Income Tax Act, 1922 for .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e manager of the firm. The court held that none of the partners of the firm had been personally served with the notice and the service of the notice was only on the manager of the firm. The manager, on whom the notice had been served, had no specific or written authority to receive the notice. The court held that when the statute provides that a notice should be served in a particular mode, it is not possible to hold that there had been a proper service of notice merely from the fact that the pe .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

h v. Commissioner of Sales Tax, (1980) 46 STC 71 (All) for the proposition that the service of the notice under section 21 of the U. P. Sales Tax Act is not a mere procedural requirement, but is a condition precedent. If no notice is issued or the notice issued is shown to be invalid or no notice has been served on the dealer, the proceedings and the consequential order under section 21 will be illegal and void irrespective of the fact that the dealer gets knowledge of the proceedings under sect .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

rein it has been held that when the Judge has no inherent jurisdiction over the subject matter of issue, the parties cannot by their mutual consent convert it into a proper judicial process although they may constitute the Judge their Arbiter and be bound by his decisions on the merits when these are submitted to him. It was submitted that therefore, when the Income Tax Officer, Mehsana did not have the jurisdiction to issue notice, it is not even open for the parties to confer jurisdiction upon .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

come that has escaped assessment is not mentioned in the said notice. The attention of the court was invited to Annexure P to the petition, at page 24, to submit that the petitioner falls under the jurisdiction of Ward No.4, Patan and therefore, the Income Tax Officer, Mehsana did not have the jurisdiction to issue notice to the petitioner. It was, accordingly, urged that the impugned notice stands vitiated on the ground of lack of jurisdiction, being vague, as well as on the ground that the not .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ty, Unjha, District Mehsana. Subsequently, it appears that there was a change in the territorial jurisdiction and hence, the case was transferred to the Income Tax Officer, Ward No.4, Patan, who was conferred jurisdiction in view of the change in territorial jurisdiction. Accordingly, the Income Tax Officer, Ward No.4, Patan issued notice under section 142(1) read with section 129 of the Act calling upon the petitioner to file return of income within 30 days of receipt of the notice as well as c .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

a bare assertion nothing has been brought on record to show that the second respondent did not have jurisdiction over the petitioner at the time of issuance of the impugned notice. 13. Pursuant thereto, the petitioner, by a communication dated 18.08.2015 addressed to the Income Tax Officer, Ward No.4, Patan, stated that the notice was served on 03.04.2015 to Sitaben V. Patel, which was handed over to him on 06.04.2015 and hence, the notice is not served properly and that the law of limitation ba .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

with no option but to finalize the assessment proceedings ex-parte under section 144 of the Act. The petitioner subsequently addressed a letter dated 04.09.2015 to the Income Tax Officer, Patan stating that he has omitted his reply dated 27.08.2015 and that unless he replies to his letter, he declines to entertain any other notice/letters. He has further cautioned the Income Tax Officer that he must bear in mind that he cannot travel beyond the Income Tax Act. By a communication dated 07.09.201 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

id communication. The petitioner has also made application under the Right to Information Act calling for certain information on 09.09.2015. The petitioner, through his power of attorney holder, addressed a letter dated 10.09.2015 to the first respondent asking him to take advice/instructions under section 144A of the Act from the Joint Commissioner of his range with reference to the submissions made by him. A communication dated 16.09.2015 addressed by the petitioner to the first respondent has .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ase directly before the Joint CIT. By another communication dated 18.09.2015 addressed to the petitioner, the first respondent informed the petitioner that the notice under section 148 of the Act had been duly served upon him personally on 30.03.2015 and was also sent by RPAD post on 27.03.2015 and thus, it is a valid service of notice. Insofar as the request for reasons is concerned, the petitioner was informed that the reasons for reopening of assessment under section 147 shall be given only a .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

notice issued under section 148 of the Act. 14. A perusal of the impugned notice dated 27.03.2015 indicates that the same is in the normal format in which the notices under section 148 of the Act are generally issued. Under the circumstances, the contention that the impugned notice is vague and not in the prescribed format, does not merit acceptance. 15. Insofar as reliance placed upon the provisions of section 151 of the Act is concerned, on a plain reading of the provisions of section 151, it .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ioner has not filed any return of income for the year under consideration, nor has any assessment has been framed under section 143(3) of the Act, under the circumstances the provisions of section 151 of the Act would not be attracted. 16. Insofar as the invalidity of the service of notice is concerned, a perusal of the cause title of the petition reveals that the address of the petitioner is shown to be 3, Vishwakarma Society, Unjha, District Mehsana . A perusal of the notice issued under secti .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. The Explanation thereto provides that a servant is not a member of the family within the meaning of the said rule. From the facts of the presen .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

clearly beyond a period of four years but within a period of six years from the end of the relevant assessment year. However, in the present case no assessment has been framed under section 143(3) of the Act, under the circumstances, the proviso to section 147 of the Act would not be attracted. On an overall view of the matter, it appears that the petitioner has proceeded on a misconception of law and not in terms of the provisions of the Act and the principles laid down by judicial pronouncemen .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version