TMI Blog2004 (6) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... ial with the Assessing Officer to come to the conclusion that any income has escaped assessment – Reassessment is bad in law – petition is allowed – notices are quashed - - - - - Dated:- 22-6-2004 - Judge(s) : M. S. SHAH., D. A. MEHTA. JUDGMENT The judgment of the court was delivered by D.A. Mehta J. -This petition under article 226 of the Constitution challenges the notices dated January 28, 1991 (exhibit C colly.), issued under section 148 read with section 147 of the Income-tax Act, 1961 (hereinafter referred to as "the Act"), for the assessment years 1982-83 to 1986-87 by the Assistant Director of Income-tax (Investigation) Circle 5(1), Ahmedabad, i.e., respondent No. 1. The facts, as averred in the petition, are as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urchased by the petitioner like printing ink, aluminium graphic plates, rubber blankets, etc. The income received from the publishers for the job work is admittedly assessed as income from business in the hands of the petitioner. For the assessment years 1982-83,1983-84,1984-85 and 1985-86, the petitioner has been assessed under section 143(3) of the Act, while for the assessment year 1986-87, the assessment has been framed under section 143(1) of the Act. Mr. K.H. Kaji, the learned advocate appearing on behalf of the petitioner, submitted that out of the five assessment years involved, the reassessment proceedings are barred by limitation for the assessment years 1982-83 to 1985-86 as the notices under section 148 of the Act have been is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner did not deserve to be granted any relief at this stage and the Assessing Officer may be permitted to proceed in accordance with law. That the petitioner could have availed of alternative remedy in case of any adverse order. Having heard the parties, it is apparent that section 32A of the Act requires that an assessee is entitled to investment allowance at the prescribed rate in relation to the machinery or plant acquired during the previous year and which is owned by the assessee and is only used for the purposes of the business carried on by the assessee. It is an admitted position that all the conditions laid down in sub-section (1) of section 32A of the Act are fulfilled by the petitioner. The provisions of clause (iii) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, the Revenue having failed to discharge the onus under the proviso to section 147 of the Act, no case is made out for the assessment years 1982-83 to 1985-86 being disturbed and the notices for the said four assessment years are quashed. It is held that the reassessment proceedings are bad in law. In so far as the assessment year 1986-87 is concerned, though the same is within the period of four years from the end of the relevant assessment year, it is apparent that even for the said year not only there is no omission or failure on the part of the assessee, but there is no material with the Assessing Officer to come to the conclusion that any income has escaped assessment. The position in law is well settled that reopening of an ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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