TMI Blog2012 (6) TMI 820X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 865,60,88,900/- ; and in W.P.No.13542 of 2012 the consequent notice issued under Section 266(3) of the Income Tax Act, 1961 (the Act ) by the 1st respondent - Assessing Officer to the 2nd respondent - Bank inter alia directing the said respondent to deposit the amount representing tax liability of the petitioner as assessed into Government account and further directing the said respondent Bank not to permit any withdrawal of the petitioner s monies in deposit with the said bank until further instructions, are assailed. The order of assessment is assailed as being contrary to provisions of Section 143(2) of the Act. The petitioner corporation filed its return of income for the Assessment Year 2009-10 on 26/09/2009 admitting nil inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Consequently there is abdication of the statutory functions and discretion by the respondent. At the hearing of this writ petition we clearly indicated to the learned counsel for the petition that this Court is not inclined to consider and adjudicate upon the issue whether the petition is immune to liability to tax under the provisions of the Act in view of the provisions of Art.289 of the Constitution and provisions of the various State enactments referred to above and other relevant provisions; and we are not inclined to judicially review the impugned order of assessment on its merits. Whether the petitioner - Corporation is immune to the matrix of taxation provisions under the Act does not merely depend on reference to relevant cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riteria are met. According to the respondent in the case of the petitioner since the turnover exceeded the parameters specified in CASS, one of the programmed criteria for scrutiny was met and the return was selected to scrutiny u/Sec. 143. It is further pleaded that once scrutiny proceedings are initiated, opportunity is provided u/Sec. 142(2), specific information is gathered and after detailed examination of the identified return of income and the relevant facts, assessment is made. There is thus no denial of fair and reasonable opportunity to the petitioner - assessee. It is further asserted by the respondent that Sec. 119 of the Act empowers the Board to issue orders in the nature of instructions/ guidelines/principles of procedure to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act. It is however the contention on behalf of the petitioner that the Board s circular instructs officers of the department including the respondent Assessing Officer, to take up for scrutiny those cases identified by CASS. If that be the only trajectory of the Board circular, we are unable to conclude that issuance of instructions to take up for scrutiny, cases identified by CASS transgresses the authority of the Board u/Sec. 119 or such instructions have a chilling effect on the discretion of the assessing officers u/Sec. 143 of the Act. Mr. Vasanthkumar has referred to Pahwa Chemicals Pvt Ltd vs Commissioner of Central Excise, Delhi ( AIR 2055 SC 1532 ); Dedicated Health Care Services TPA (India) (P) Ltd Ors vs Assistant Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the statutory defence available to an assess u/Sec. 273B. The court held that such a direction of the Board transgresses the restraint upon its power placed by the proviso to sub-sec. (1) of Sec. 119. In Sirpur Paper Mill ((1970) 77 ITR 6 (SC)) the Supreme Court restated the established principle that the power u/Sec. 25 of the Wealth Tax Act on the Commissioner of Wealth Tax is not administrative but quasi judicial; that though Sec. 13 provides that all officers and other persons employed in execution of the Act shall observe and follow the orders, instructions and directions of the Board, such instructions may control the exercise of the power of the officers of the department in administrative but not quasi judicial areas and aspects ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tically identify a case as justifying scrutiny, wherever one or more of the markers are present in the return of income filed, either electronically or manually. If the board had directed that cases identified by CASS ought to be taken up for scrutiny, we fail to see how such instructions interfere with the assessing officer s discretion. The CASS methodology evolved and currently employed by the department as revealed from the rival contentions and pleadings on record, is but an efficient methodology for proper exercise of discretion by the assessing officer u/Sec.143. On the aforesaid analyses we find no violation of provisions of the Act; or abdication of statutory discretion by the respondent, in taking up the petitioner s case fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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