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M/s Elite Pharmaceuticals & Another Versus Income-Tax Officer, Ward 46 (1) , Kolkata

2016 (3) TMI 543 - CALCUTTA HIGH COURT

Challenge to the authority of ITO to issue notices under Section 148 - Held that:- An additional twist is sought to be given by the department in suggesting that the ITO, Ward-46(1) may not have been the person entitled to receive the returns from the petitioning assessee, but that such officer exercised the authority of an assessing officer over the petitioning assessee in view of the petitioning assessee having filed the original returns with such officer. According to the department, the appr .....

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cessary to supplement the order with additional reasons which did not occur to the authority rendering the decision in the first place.

Since it is evident that the petitioning assessee was precluded by Section 124(3)(b) of the Act from questioning the authority of the assessing officer who had issued the notices under Section 148 of the Act dated March 27, 2015 to the petitioning assessee on April 29, 2015, the contents of the letters dated April 29, 2015 and the objection as to juri .....

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ection 148 of the Income Tax Act, 1961 to the petitioning assessee, the aspect of the erroneous assumption of jurisdiction has not been dealt with in the letter. There is no dispute that the petitioning assessee accepted the ITO, Ward- 46(1), Kolkata to be the appropriate assessing officer prior to the issuance of a Central Board of Direct Taxes notification of October 22, 2014. According to the petitioners, by virtue of the said notification of October 22, 2014, with came into effect from Novem .....

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t dated March 27, 2015 were received by the petitioning assessee on the same day of March 27, 2015. The petitioners have produced copies of the relevant notices of March 27, 2015 from a previous petition filed in this Court. Each of the notices under Section 148 of the Act pertaining to assessment years 2012-13, 2013-14 and 2014-15 required the assessee to deliver to the assessing officer "within 30 days from the date of service of this notice" a return in the prescribed form of the as .....

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2015 since the date of receipt of the notice (March 27, 2015) has to be disregarded for the purpose of counting 30 days therefrom and the month of March has 31 days. Section 124(3)(b) of the Act permits a person to call in question the jurisdiction of an assessing officer at any stage prior to the expiry of the time allowed by a notice under Section 148 for the making of the return. There is no dispute that clause (a) of Section 124(3) of the Act does not apply to this case and the other situati .....

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petitioners have sought to question the authority of the ITO, Ward- 46(1) to issue the notices under Section 148 of the Act to the petitioning assessee and the consequent steps. On the petitioners' previous petition, WP No.655 of 2015, an order was made on July 14, 2015, which directed the ITO, Ward-46(1) "to respond to the petitioners' letter dated 29th April, 2015." The concerned ITO has responded to such letter by the impugned letter dated August 17, 2015. As far as the CBD .....

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evident that the objection raised by the ITO by citing Section 124(3) of the Act is insurmountable. The petitioners say that the petitioners did not question the authority of any assessing officer within the meaning of Section 2(7A) of the Act. The petitioners assert that since, under the relevant notification, the ITO, Ward-22(2), Kolkata was the appropriate ITO to assume the authority of assessing officer qua the petitioning assessee, Section 124(3) of the Act would not be applicable. With res .....

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the notice, the assessee could question the authority of the ITO issuing the notice as an appropriate assessing officer within the time that the assessee was required to respond to such notice under Section 148 of the Act. Once the addressee of a notice failed to question the jurisdiction of assessing authority who issued the notice under Section 148 of the Act within the time stipulated in the notice under Section 148 of the Act to do the thing required thereby, by virtue of Section 124(3)(b) .....

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ce under Section 148 of the Act stood extinghished. The concerned ITO has rightly referred to such aspect of the matter in the impugned response of August 17, 2015. After all, the jurisdictional challenge did not go to the root of the matter; it only pertained to a perceived irregularity on the basis of the business allocated to different ITOs by the CBDT notification of October 22, 2014. An analogy in general civil law may be noticed. Section 21 of the Code of Civil Procedure,1908 contains a si .....

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