TMI Blog1972 (3) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... notice dated 30th March, 1971, issued under section 148 of the Income-tax Act for the assessment year 1962-63 by the respondent, Income-tax Officer " B " Ward, Central Salary Circle, should not be cancelled, withdrawn or rescinded. The petitioner contends that the Income-tax Officer had assumed jurisdiction under section 148 of the Act on the ground of reconsidering salary income of the petitioner to be taken on " due basis ". In that event, the petitioner submits that on a thorough examination of the material produced by the petitioner at the time of the original assessment, the Income-tax Officer before making the assessment was fully satisfied about the said material. The petitioner, therefore, submits that the purported action of the respondent No. 1 to assess the salary income of the petitioner on " due basis " and not on " actual receipt basis " is amounting to and/or will amount to a mere change of opinion and, as such, the respondent No. 1 had no competence, jurisdiction or authority to initiate the purported reassessment proceeding under section 148 of the Act. The petitioner also contended that the purported notice under section 148 of the Act dated 30th March, 1971, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r on 'due basis' for the assessment year 1961-62 should therefore be Rs. 8,271.00." Again in paragraph 17 the respondent says : " That the action under section 147 of the new Act has been taken by me to assess the salary income of the petitioner on ' due basis ' in accordance the decision of the Appellate Assistant Commissioner of Income-tax, Range 'J', dated 20th April, 1967, given in the appeal preferred by the petitioner for the assessment year 1961-62 inasmuch as the salary income of the petitioner as disclosed by the petitioner on 'due basis ' for the assessment year 1962-63, was not included in the computation of the total income of the petitioner inasmuch as the respondent No. 2 in assessing the petitioner for the assessment year 1962-63 adopted the ' receipt basis '. " The respondent also states that the said notice dated 30th March, 1971, was served on the petitioner on the same day, i.e., on the 30th March, 1971. The petitioner, however, in the acknowledgement of the said notice according to the respondent put the date of receipt thereof as 29th March, by mistake. Further, the respondent No. 1 also states in his affidavit at the end of paragraph 19 : " I say that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... my attention to certain overwritings and strenuously contended that the acknowledgement receipt does not bear the signature of his client or anybody on behalf of his client and, as such, according to Mr. Bhattacharya, this receipt is a spurious document and the notice dated 30th March, 1971, cannot possibly be received by anyone on the previous date, i.e., on the 29th of March, 1971, though it bears the date of 29th of March, 1971. According to him, this document is a suspicious document. It is not disputed that if the notice was really received on the 1st of April, 1971, that would be beyond 8 years of the assessment year 1962-63 but if the notice that was served by hand is taken to be correct service then of course it will not be beyond 8 years. I asked the parties to produce both these documents-the original envelope with the notices which reached the petitioner by registered post and also the acknowledgement slip which was produced by Mr. Banerjee. Mr. Bhattacharya further argued that in any event in the present case the requisite period of limitation is not 8 years under section 147(a), but 4 years under section 147(b). Section 149(1) says : (1) No notice under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that it was through inadvertence that is portion was deleted in the original notice and drew my attention to the submission made by the Income-tax Officer in paragraph 19 which says that through inadvertence that was deleted, as stated above. Mr. Banerjee however produced before me from the file the alleged sanction of the Commissioner of Income-tax which also according to the petitioner does not show that the Commissioner of Income-tax did actually apply his mind while according the sanction. Mr. Banerjee also urged that the court should not consider about the validity of service of notice in the writ application which is a question of fact and also drew my attention to several authorities. Mr. Banerjee refers to a case, Chhugamal Rajpal v. S. P. Chaliha. But in that case the Supreme Court held that the notice under section 147 was invalid and I do not think that that case at all supports Mr. Banerjee. Another case which was referred to by him and also cited by Mr. Bhattacharya is the case of Panama Pyivate Ltd. v. Income-tax Officer, Calcutta Mr. Banerjee strongly relies on a recent Supreme Court case, Commissioner of Income-tax v. Ramendra Nath Ghosh , where their Lordship ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Council which determined the rights of the parties constituted definite information within the meaning of section 34 of the old Income-tax Act. The same view was expressed in Maharaj Kumar Kamal Singh v. Commissioner of Income-tax by the Supreme Court, where it held: " The decision of the Privy Council was ' information ' within the meaning of section 34(1)(b) and that their decision justified the belief of the Income-tax Officer that part of the appellant's income had escaped assessment for the relevant year. Two conditions must be satisfied before the Income-tax Officer can act under section 34(1)(b): he must have information which comes into his possession subsequent to the making of the original assessment order, and that information must lead to his belief that income chargeable to tax has escaped assessment, has been under-assessed or assessed at too low a rate, or has been made the subject of excessive relief. " In another case, Commissioner of Income-tax v. Burlop Dealers , the Supreme Court has decided that : " Where on the evidence and the materials produced during the original assessment proceedings the Income-tax Officer could have reached a conclusion other t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s deleted. The Income-tax Officer has also stated in his affidavit that through inadvertence it was deleted. So he produced before me the original file where the Commissioner's signature appears bearing the date 30th March, 1971. In the cases Chhugamal Rajpal v. S. P. Chaliha and Commissioner of Income-tax v. Burlop Dealers the Supreme Court has said that if the Commissioner mechanically accorded sanction, that is not proper sanction. In the present case, as I have seen, there was only a rubber stamp above the signature of the Commissioner. About the notice as I have stated earlier, I asked the petitioner to produce before me the original envelope and the notice issued by the income-tax department and I also asked Mr. Banerjee to produce before me the said acknowledgment slip. I direct that these documents should be kept with the records of this case. On examining these documents I must candidly say that the acknowledgement slip appears to be somewhat suspect. Therefore, there was no proper service of notice on March 30, 1971, nor there was a proper sanction by the Commissioner of Income-tax and, in any event, in the facts of this case, section 147(1)(b) applies, hence notice under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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