TMI Blog2007 (2) TMI 162X X X X Extracts X X X X X X X X Extracts X X X X ..... as challenged the notice dated March 3, 2006, issued by the Revenue requiring the preparation of a true and correct return of income of the assessment years 2000-01 to 2004-05. Subsequent thereto, notice dated September 4, 2006, under section 142(1) of the Income Act, 1961 ("the IT Act") has also been issued. The prayer is that the entire action of the Revenue, being contrary to law, should be set aside. The petitioner had also approached this court in WP(C) No. 18110 of 2006 which was disposed of by orders dated December 12, 2006, inter alia, directing the petitioner to fully participate in the assessment proceedings. At that stage the petitioner's grievance was that while dealing with its objections, by orders dated October 13, 2006, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner had not challenged the maintainability or legality of the proceedings under section 147/148 of the Income-tax Act and the Department's resorting to section 142(1) of the Income-tax Act. 3. The respondents had furnished a copy of the ledger account of Data Access (India) Ltd., Nehru Place, New Delhi, which was the springboard for the issuance of the impugned notices. In response to further communication addressed to it by the petitioner the respondents had recorded that they would not rely on any documents other than the said ledger account. This ledger account pertains to "Reach (ILD Creditor)". It also contains transactions pertaining to Reach Network Hongkong Ltd., Hutch Delhi (OSL-ILD Creditors), Reach (OSL-ILD Creditors), et ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rew our attention to the findings that the Income-tax Officer had not before him any non-disclosure of a material fact and so he could have no material before him for believing that there had been any material non disclosure by reason of which an underassessment had taken place. Our attention has also been drawn to the decision of the Division Bench of this court in United Electrical Co. P. Ltd. v. CIT [ 2002] 258 ITR 317. Here also notice under section 147 of the Income-tax Act had been issued after four years and, therefore, the pre-requisite for the existence of reason to believe that income has escaped assessment had come into sharp focus. As in Calcutta Discount [1961] 41 ITR 191 (SC) ; AIR 1961 SC 372, the Division Bench took ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The sufficiency or correctness of the material is not a thing to be considered at this stage. We are of the view that the court cannot strike down the reopening of the case in the facts of this case. It will be open to the assessee to prove that the assumption of facts made in the notice was erroneous. The assessee may also prove that no new facts came to the knowledge of the Income-tax Officer after completion of the assessment proceeding. We are not expressing any opinion on the merits of the case. The questions of fact and law are left open to be investigated and decided by the assessing authority. The appellant will be entitled to take all the points before the assessing authority. The appeals are dismissed. There will be no order as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary jurisdiction under article 226 of the Constitution of India. This is for the simple reason that no assessment has taken place and, therefore, no opinion or decision has yet been articulated. It would be wholly inappropriate for the writ court to look into the ledger account of Data Access (India) Ltd. to see whether it justifies action under section 147 of the Income-tax Act. The Revenue must be free to arrive at a conclusion based on the material before it. If it comes to a conclusion which is adverse to the assessee it will always be open to it to lay seige to it by way of filing an appeal before the Commissioner of Income-tax (Appeals) and thereafter to the Income-tax Appellate Tribunal ("the ITAT") which will have the final say so f ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
