9911796707
TMI Blog2004 (5) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... be noticed. The petitioner is a public limited company incorporated under the Companies Act, 1956, and is regularly assessed to income-tax under the Act. It filed its return of income for the assessment year 1995-96 on November 28, 1995, showing a total income of Rs. 23,85,28,960. The return was subsequently revised on July 16, 1996, showing an income of Rs. 24,24,63,910. In the return filed by the assessee, it had claimed exemption under section 10B of the Act in respect of profits and gains derived from one of its units, M/s. Annant Spinning Mills (Unit I), which was a 100 per cent, export oriented unit, amounting to Rs. 4,64,51,545. It also claimed deduction under section 80HHC of the Act amounting to Rs. 5,51,59,320. Assessment under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the assessee approached this court by filing the present petition. Written statement has been filed on behalf of respondent No. 2 along with which copy of the reasons recorded have been enclosed as annexure R1. In replication, the petitioner has pointed out that a bare perusal of the reasons recorded shows that the assumption of jurisdiction was clearly bad as the pre-requisite conditions as provided in section 147 of the Act have not been fulfilled. Mr. G.C. Sharma, learned counsel for the petitioner, pointed out that it is a case where assessment had been completed under section 143(3) of the Act and proceedings under section 147 are sought to be initiated after the expiry of four years from the end of the relevant assessment year. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bombay High Court in Ajanta Pharma Ltd. v. Asst. CIT [2004] 267 ITR 200 in which notice under section 148 of the Act was quashed in a writ petition overruling the objection of the Revenue that in view of the judgment of the Supreme Court in the case of GKN Driveshafts (India) Ltd. [2003] 259 ITR 19, no writ petition against a notice under section 148 of the Act was maintainable. The High Court has observed as under: "If one reads the decision of the apex court in GKN's case [2003] 259 ITR 19, as rightly submitted by the learned advocate for the petitioners, it nowhere lays down the law to the effect that the party is totally debarred from approaching this court under article 226 of the Constitution of India when the exercise of powers by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the jurisdiction under article 226 of the Constitution of India, being an extraordinary jurisdiction cannot be allowed to be availed of as a matter of course. In order to decide an issue of jurisdiction, findings of the authority on the factual aspect may be necessary. In that case, certainly primarily the assessee will have to approach the Assessing Officer. That does not mean that the assessee is invariably bound to approach the Assessing Officer in each and every case. There can be the cases, like the one in hand, where he may be entitled to approach the court directly under article 226 of the Constitution of India." We are in agreement with the above observations. Before issuing the impugned notice under section 148 of the Act, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act to an 100 per cent. EOU. This issue has been discussed in detail in the assessment order under section 143(3) dated March 30, 2001, for the assessment year 1998-99. After taking into consideration, the assessee's reply and arguments on the said issue, it has been held that the assessee is not entitled to claim deduction under section 80HHC on export sales of an 100 per cent. EOU, in respect of income of which, exemption has been claimed under section 10B of the Act. A scrutiny of the assessment records of the assessment year 1995-96 reveals that the assessee had claimed exemption under section 10B of the Act in respect of income of Rs. 4,64,51,545 relating to its 100 per cent. EOU named as Annant Spinning Mills Unit I. Simultan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts necessary for its assessment. As held in Duli Chand Singhania's case [2004] 269 ITR 192 (P & H), absence of this finding makes the action of the Assessing Officer wholly without jurisdiction. Since the illegality of notice under section 148 of the Act is apparent from the reasons recorded for initiation of proceedings under section 147 of the Act, it is a fit case for interference in the exercise of our writ jurisdiction. Sending the petitioner back to the Assessing Officer to raise these objections and requiring him to pass an order thereon would be prolonging the proceedings unnecessarily. In view of the above, we are satisfied that the impugned notice under section 148 of the Act is without jurisdiction and is, accordingly quashed. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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