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M/s. ELITE PHARMACEUTICALS AND ANR. Versus INCOME TAX OFFICER, WARD 46 (1) , KOLKATA

2016 (9) TMI 512 - CALCUTTA HIGH COURT

Reopening of assessment - time limit to raise objections - Held that:- Admittedly, the objection was not raised by the appellants within 30 days even from the date of issuance of notice under Section 148. The objection was raised by a letter dated 29th April, 2015 and the notices under Section 148 were received on 27th March, 2015. It is not also possible to contend that the period of limitation shall commence only from the date of issuance of the notice under Section 148. Notice under Section 1 .....

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fficer held that the assessee had lost the right to raise the objection by efflux of time. We, as such, find no substance in the case of the appellant. - GA NO.709 OF 2016 WITH APO NO.97 OF 2016 WP NO.1172 OF 2015 - Dated:- 3-8-2016 - GIRISH CHANDRA GUPTA AND ARINDAM SINHA, JJ. FOR THE APPELLANT : MR.R.N.DUTT, MRS.SUTAPA ROYCHOWDHURY, ADVOCATES FOR THE RESPONDENT : MR.SOUMITRA MUKHERJEE, ADVOCATE The Court :-The facts and circumstances of the case are as follows :- The appellants had earlier fil .....

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r the case of the petitioners on and from 15th November, 2014 in view of the Notification dated 22nd October, 2014. The writ petitioner alleged that he had demanded justice by letters dated 12th February, 2015, 29th April, 2015 and 12th May, 2015 but the same had been denied to him. The said writ petition was registered as WP No.655 of 2015 and the same was disposed of by an order dated 14th July, 2015 by the following order: - In such circumstances, this writ petition is disposed of with a dire .....

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Reasons for reopening were already communicated to you through Post for the A.Y. 2012-13, 2013-14 & 2014-15 2 CBDT s Notifications, if any, showing that you have jurisdiction over the case after the aforesaid notification effective from 15.11. 2014 Survey was conducted in the business premises of the assessee at No.74 and 75A, Narasingha Dutta Road, Howrach-711101 on 6th & 7th February, 2015 with proper authorization from the higher authority and the authorization was duly signed by the .....

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(1), Kolkata by sending letters through speed post, wherein no challenge of jurisdiction was made. But after receiving the notice u/s148 of the Act for A.Y. 2012-13, 2013-14 & 2014-15, the issue of challenge of jurisdiction were came to their mind to avoid the penal action initiated by the department. You have also submitted a written submission to this office to treat the return for A.Y.2012-13, 2013- 14 & 2014-15 as return in responses to the notice u/s 148 of the Act on 12/05/2015 whi .....

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tion of this case does not hold. Hence, the service of notice u/s 148 of the Act remains valid and the proceedings initiated by way of servicing notice u/s 148 of the Act on the assessee for A.Y. 2012-13, 2013-14 & 2014-15 remain fully legal proceedings under the provisions of IT Act. On regards to Section 124(3) of the IT Act, the violation of CBDT s Notifications does not arise in this particular case. 3 Copy of satisfaction obtained from Ld. Commissioner of Income Tax, Kolkata-16, Central .....

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9th September, 2015, WP No.1172 of 2015 was filed which was dismissed by an order dated 23rd February, 2016 by holding as follows;- 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 jurisdiction contai .....

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er dated 17th August, 2015 by the assessing officer. Mr. Dutt, learned Advocate appearing for the appellants, submitted that the assessee did not raise any objection contending that the assessing officer issuing notice under Section 148 had no jurisdiction and that somebody else had jurisdiction to do so. If this were the case, the question of determining as to which of the two assessing officers had jurisdiction to issue notice under Section 148 might have arisen. But the contention of the writ .....

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sing officer were without jurisdiction, Section 124 did not give any assistance. Therefore, reliance placed upon sub-section (3) of Section 124 by the assessing officer and subsequently upheld by the learned Trial Court are both erroneous. He in support of his submission relied on a Judgement of the Apex Court in the case of Raza Textiles Ltd. Vs. I.T.O, Rampur reported in 1973(87 ITR 539) wherein the following views expressed:- The question whether the jurisdictional fact has been rightly decid .....

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y decide a jurisdictional fact and thereafter proceed to impose a levy on a citizen. In our opinion, the Appellate Bench is wholly wrong in opining that the Income-tax Officer can decide either way . We have not been impressed by the submissions advanced by Mr. Dutt. The objection raised by the appellants was in essence an objection to the territorial jurisdiction of the assessing officer who had issued the notice under Section 148 and before that had conducted various proceedings including sear .....

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om the date on which he was served with a notice under sub-section (1) of section 142 or [sub-section (2) of section 115WE or] sub-section (2) of section 143 or after the completion of the assessment, whichever is earlier; (b) where he has made no such return, after the expiry of the time allowed by the notice under [sub-section (2) of section 115WD or subsection (1) of section 142 or under sub-section (1) of section 115WH or under section 148 for the making of the return or by the notice under .....

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.] Admittedly, the objection was not raised by the appellants within 30 days even from the date of issuance of notice under Section 148. The objection was raised by a letter dated 29th April, 2015 and the notices under Section 148 were received on 27th March, 2015. It is not also possible to contend that the period of limitation shall commence only from the date of issuance of the notice under Section 148. Notice under Section 148 was issued because prior thereto search and seizure was conducted .....

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the CBDT referred to above. It may be true that the writ petitioners did not have knowledge of the aforesaid notification but limitation on that account shall not remain suspended nor can the period during which the writ petitionerappellant was ignorant about the change of jurisdiction can be excluded because that would be contrary to Section 124(3). The judgement in the case of Raza Textile Limited(supra) is not applicable to the facts and circumstances of this case. What had happened in that .....

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t:- In the present case the question before the Income-tax Officer, Rampur, was whether the firm Nathirmal and Sons was non-resident or not. There was material before him on this question. He had jurisdiction to decide the question either way. It cannot be said that the officer assumed jurisdiction by a wrong decision on this question of residence. This finding of the Division Bench did not find favour from Their Lordship of the Apex Court. Their Lordship were of the opinion that a quasi-judicia .....

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