9911796707
TMI Blog2016 (11) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... ents from acting further in pursuance of the impugned notice dated 28 May 2001. 3. On 30 November 1994, the Petitioner filed its return of income for the Assessment Year 199394 declaring a loss of Rs. 33.07 crores. On 24 February 1997, the Assessing Officer passed an order under Section 143(3) of the Act determining the Petitioner's total income at Rs. 71.11 lakhs. 4. Thereafter, on 28 May 2001, the impugned notice seeking to reopen assessment for Assessment Year 1994-95 was issued to the Petitioner. The Petitioner challenged the impugned notice dated 28 May 2001 by filing this petition. Pending admission of this petition, the reasons recorded in support of the impugned notice dated 28 May 2001 were filed by the RespondentRevenue as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial income has escaped assessment. As per section 147 of I.T. Act for reopening the assessment, assessing officer should have reason to believe that any income chargeable to tax has escaped assessment. In view of the details mentioned in earlier paras, I have reasons to believe that substantial income chargeable to tax has escaped assessment. As per explanation 2 to Section 147 if income chargeable to tax has been made the subject of excessive allowance, the same will be deemed to be the case where income chargeable to tax has escaped assessment. This is as per explanation 2(c)(i)&(iv) to Section 147. The income escaped is Rs. 11.33 Crores which is much more than the limits mentioned in Section 149. The reopening of assessment will be withi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ometax Officer (2003) 259 ITR 19 (SC), the Petitioner could now file its objections to the reasons recorded in support of the impugned notice (as now communicated). The Assessing Officer would consider the objections and pass an order thereon accepting or rejecting the objections. It is submitted that in view of the declaration of the law by the Apex Court, there is an alternative remedy available and, therefore, this court should not exercise its extraordinary jurisdiction and grant relief to the Petitioner. 8. As against this, Ms.Vissanji, learned Counsel for the Petitioner points out that this petition challenges a notice of the year 2001 seeking to reopen an assessment for the Assessment Year 1994-95. Therefore, in the present facts, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, to consider the petition on merits in view of the decision of the Apex Court in GKN Driveshafts (India) Ltd. (supra). In fact, the court held that a party is not barred from approaching this court under Article 226 of the Constitution of India when the notice issued under Section 148 is ex facie without jurisdiction. The court, in particular, observed as under : " The decision in GKN's case [2003] 259 ITR 19 (SC) certainly reminds the assessee that when a notice under section 148 is issued, the proper course of action is to file a reply with his objections including those in relation to the absence of jurisdiction. However, it does not lay down the law to the effect that when such an objection is in relation to absence of jurisdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld most certainly not exercise our jurisdiction and relegate the Petitioner to filing its objections. 12. It is an undisputed position that the impugned notice is issued beyond the period of four years from the end of the relevant Assessment Year i.e. 1994-95. The impugned notice seeks to reopen an assessment with regard to which an order under Section 143(3) had been passed. Therefore, the first proviso to Section 147 of the Act would apply. The above proviso bars the Revenue from issuing a notice for reopening an assessment where the assessee has truly and fully disclosed all material facts necessary for assessment. The reasons in support must indicate failure on the part of the Assessee to fully and truly disclose all material facts ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the end of the relevant assessment year in cases where assessments have been completed under Section 143(3) of the Act is a failure on the part of the Assessee to fully and truly disclose material facts necessary for assessment. The reasons in support of the impugned notice do not indicate even remotely that there was any failure on the part of the Respondent Assessee to fully and truly disclose all material facts necessary for assessment. Therefore, the impugned notice is without jurisdiction and is, therefore, set aside.
14. In the above view, no occasion to direct the Petitioner to file objections to the impugned notice can arise.
15. Accordingly, Rule is made absolute in terms of prayer clause (a). No order as to costs. X X X X Extracts X X X X X X X X Extracts X X X X
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