TMI Blog2004 (5) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - Impugned notice is without jurisdiction and is, accordingly quashed. - - - - - Dated:- 29-5-2004 - Judge(s) : N. K. SUD., S. S. GREWAL. JUDGMENT The judgment of the court was delivered by N.K. Sud J. - Challenge in this writ petition is to the validity of notice under section 148 of the Income-tax Act, 1961 (for short "the Act"), by which proceedings under section 147 of the Act (annexure P16) have been initiated to reassess the income which is alleged to have escaped assessment for the assessment year 1995-96. Before advertin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee complied with the said notice and filed the return on August 10, 2001, and also requested that a copy of the reasons recorded for initiation of proceedings under section 147 of the Act be supplied to it so that it may file objections against the same. Since the reasons recorded by the Assessing Officer were not supplied, a reminder to that effect was sent vide letter dated August 18, 2001. Getting no response from the Assessing Officer, the petitioner addressed a letter to the Commissioner of Income-tax, Ludhiana, dated August 24, 2001, bringing it to his notice that the Assessing Officer has neither supplied a copy of the reasons recorded nor allowed inspection of the record. Another reminder was sent to the Assessing Officer on Augu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Foramer France [2003] 264 ITR 566. Mr. R.P. Sawhney, senior advocate, on the other hand, contended that the writ petition is not maintainable against notice under section 148 of the Act as the assessee shall have full opportunity to raise all legal objections before the Assessing Officer. For this purpose, he placed reliance on the judgment of the Supreme Court in GKN Driveshafts (India) Ltd. v. Income-tax Officer [2003] 259 ITR 19. He further stated that since the assessee had claimed double deductions by claiming exemption under section 10B as also deduction under section 80HHC in respect of Annant Spinning Mills (Unit I), it is clear that the assessee had failed to disclose truly and fully all material facts necessary for its asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds 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 jurisdiction and the same is revealed ex facie or apparent on the face of a notice or reasons in support thereof, the assessee has compulsorily to invite an order from the Assessing Officer in relation to the absence of jurisdiction. It is another case that when certain facts are to be ascertained or various other materials are to be gone through to arrive at a finding about the absence of jurisdiction, in which case, certainly, the assessee will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Income-tax Appellate Tribunal which are pending. The assessee's income determined at Rs. 24,10,65,297 vide order under section 154, dated December 29, 1999. During the course of assessment proceedings for the assessment year 1998-99, it came to the notice of the undersigned that the assessee had been claiming exemption under section 10B in respect of the income of its 100 per cent. EOU named as Annant Spinning Mills (Unit I) for the assessment years 1995-96 to 1999-2000. At the same time, it has also been claiming deduction under section 80HHC in respect of export sales of the said unit resulting into double relief under sections 10B and 80HHC on the same export sales. This double relief (exemption under section 10B and deduction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowed to the assessee under section 80HHC to the extent of deduction allowed in respect of export turnover of the said 100 per cent. EOU and income to that extent which was chargeable to tax has escaped assessment for the assessment year 1995-96. This escaped income is proposed to be reassessed now under section 147. It is, therefore, requested that permission may kindly be allowed to issue notice under section 148 read with section 150(1) of the Income-tax Act." A bare perusal of the above shows that the entire thrust of the observations recorded by the Assessing Officer is to justify his satisfaction about escapement of income. There is not even a whisper of an allegation that such escapement had occurred by reason of failure on the par ..... X X X X Extracts X X X X X X X X Extracts X X X X
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