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TMI Blog2017 (9) TMI 353X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation as would appear from the impugned show cause-cum-demand notice. He submits that, if a claim made by the Department in the show cause notice is barred by limitation, then such show cause notice has to be treated without jurisdiction and a writ petition is in respect thereof is maintainable. In support of such contention, he relies upon 1977 (107) ITR 253 Cal, (Jiyajeerao Cotton Mills Ltd.-Versus- Income Tax Officer & Ors.). He relies upon an unreported decision of the Court dated May 5, 2016 rendered in WP No. 1280 of 2001 relating to Section 147 of the Income Tax Act, 1961 and submits that, in the facts of the present case where the impugned show cause notice records that, the petitioner had filed the monthly returns, the questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the issuance of show cause notice if the events tabulated in such sub-section and upon the clauses thereunder being fulfilled. In the present case, the impugned show cause-cum-demand notice is dated March 31, 2016 and it relates to the period from April 2011 to May 2015. It is within the time span of five years stipulated under Section 11A(4) of the Act of 1944. The impugned show cause-cum-demand notice claims that, the petitioner is guilty of suppression of relevant facts to evade payment of duty. It alleges that, the petitioner had suppressed material facts by not submitting any document to the Department. The petitioner has submitted a reply to the show cause notice. A period in excess of one year has elapsed since the issuance of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erial fact. This allegation is an issue of fact. It is required to be considered by the adjudicating authority. On the basis of the materials placed before the Writ Court, it cannot be said that such an issue has to be decided in favour of the assessee. So far as the point of limitation is concerned as noted in Jiyajeerao Cotton Mills Limited (supra), when the question of limitation is mixed question of fact and law and it requires a further investigation and determination, in such facts a writ petition is not maintainable. In the facts of the present case, ex facie, it cannot be said from the impugned show cause notice that, the claim made against the petitioner in the show cause-cumdemand notice is barred by limitation. Since the question ..... X X X X Extracts X X X X X X X X Extracts X X X X
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