TMI Blog2015 (11) TMI 1381X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 APPLICATION NO. 17768 of 2015 - - - Dated:- 2-11-2015 - MS. HARSHA DEVANI AND MR. A.G.URAIZEE, JJ. FOR THE PETITIONER : MR MANUBHAI HARGOVANBHAI PATEL, Legal Power of Attorney ORAL ORDER (PER : HONOURABLE MS.JUSTICE HARSHA DEVANI) 1. The petitioner, an individual, has filed this petition under Article 226 of the Constitution of India challenging the notice dated 27th March, 2015 issued by the second respondent under section 148 of the Income Tax Act, 1961 (hereinafter referred to as the Act ). 2. Initially, 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08.2015. 7. Subsequently, the first respondent issued a show cause notice dated 01.09.2015 under section 144 of the Act for finalizing the assessment and further fixing the date of hearing on 07.09.2015, failing which he would proceed ex-parte. It appears that the petitioner has entered into correspondence with the Income Tax 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) did not have the time to attend to the petitioner. The first respondent has addressed a letter dated 18.09.2015 to the petitioner, stating that the petitioner can directly communicate with the Range Joint Commissioner in connection with the directions under section 144A of the Act for assessment year 2008-09. The first respondent has also addressed a letter dated 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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 Supreme Court in the case of Commissioner of Income Tax v. Kurban Hussain Ibrahimji , (1971) 82 ITR 821, for the proposition that it is well settled that the Income Tax Officer s jurisdiction to reopen an assessment under section 34 of the Income Tax Act, 1922 depends upon the issuance of a valid notice. In the facts of the said case, the notice under section 34 had been issued in relation to assessment year 1947-48, but the Assessing Officer reopened the assessment of the year 1948-49. The court, accordingly, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontents of paragraph 5 of the said decision wherein, the decision of the Privy Council of Ledgard v. Bull , ILR (1986) 9 All 191 (203) had been referred to, wherein 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 him by mutual consent. Reference was also made to the decision of the Allahabad High Court in the case of Sri Nath Suresh Chand Ram Naresh v. Commissioner of Income Tax , (2006) 280 ITR 396 (All.) , for the proposition that a vague notice is an invalid notice and in such a case, the vagueness cannot be removed by reference to other documents on the record. Referring to the impugned notice issued under section 148 of the Act, it was submitted that the said notice is vague and that the amount of income that has escaped assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 and hence, the notice is not served properly and that the law of limitation bars the notice. Various other grounds were taken in the said communication as regards the lack of jurisdiction on the part of the Income Tax Officer as well as limitation. In response thereto, the Income Tax Officer, Patan issued a show cause notice dated 01.09.2015 for finalizing assessment under section 144 of the Act for assessment year 2008-09 of fixing the hearing on 07.09.2015 stating that the petitioner had not complied with the notice under section 142(1) of the Act and hence, he was left 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 07.09.2015 addressed to the first respondent, the petitioner has stated that the notice must be served on the assessee only and n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 is evident that the same relate to a case where an assessment under sub-section (3) of section 143 or section 147 has been made for the relevant assessment year, in which case, no notice can be issued under section 148 of the Act by an Assessing Officer who is below the rank of Assistant Commissioner, unless the Deputy Commissioner is satisfied on the reasons recorded by such Assessing Officer that it is a fit case for the issue of such notice. It may be noted that in the present case, the petitioner 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d ask for the reasons for reopening the assessment and thereafter, to file the objections in respect thereto as laid down by the Supreme Court in the case of GKN Driveshafts (India) Ltd. v. ITO , (2003) 259 ITR 19 , wherein it has been held thus: We see no justifiable reason to interfere with the order under challenge. However, we clarify that when a notice under Section 148 of the Income Tax Act is issued, the proper course of action for the noticee is to file return and if he so desires, to seek reasons for issuing notices. The assessing officer is bound to furnish reasons within a reasonable time. On receipt of reasons, the noticee is entitled to file objections to issuance of notice and the assessing officer is bound to dispose of the same by passing a speaking order. In the instant case, as the reasons have been disclosed in these proceedings, the assessing officer has to dispose of the objections, if filed, by passing a speaking order, before proceeding with the assessment in respect of the abovesaid five assessment years. 18. In the present case, the petitioner has not followed the due procedure which is required to be followed for the purpose of challenging t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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