9911796707
TMI Blog2004 (2) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... tutory authority is raised, the writ court in its discretion, as a rule, entertains such petition. Secondly, the theory of alternative remedy does not operate as an absolute bar. It may be a question of convenience and discretion of the writ court. At the time of admission of this matter this court in exercise of discretion has entertained the matter and passed an interim order. The question of jurisdiction should have been raised at the first available opportunity, namely, at the time of admission. It is not a question of inherent lack of jurisdiction of this court, at the highest it may be a question of improper exercise of jurisdiction. Such a plea in a case of this nature can always be avoided or waived by the respondent. In my view, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Assessing Officer and disclosed whatever it could do at the time of assessment. Thereafter, petitioner No. 1 nearly after two years received a notice under section 154 of the said Act whereby and whereunder the Assessing Officer wanted to rectify and/or correct the said assessment order. In this rectification exercise the Assessing Officer included the aforesaid portion of the income deduction of which has been allowed. The petitioner replied to the said notice for rectification, and the contention of the petitioner was accepted and whatever deduction was allowed under section 32AB of the said Act was retained and the same was not withdrawn. After all this was done, on December 12, 1995, the impugned notice under section 148 of the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessing Officer that it is a fit case for the issue of such notice. Sub-section (2) of section 148 of the said Act makes it abundantly clear that unless the reasons are recorded by the Assessing Officer, the assumption of jurisdiction under the aforesaid section 147 of the said Act will be wholly illegal. In support of his contentions he has relied on a decision of the learned single Bench of this court reported in Union Carbide (India) Ltd. v. ITO [1973] 87 ITR 529 and also a decision of the Supreme Court reported in CIT v. Corporation Bank Ltd. [2002] 254 ITR 791. Therefore, he concludes that the action on the part of the Assessing Officer is without jurisdiction and the same is liable to be set aside and quashed. Mr. Mitra, learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to he applied in this case. It is the settled position of the law that the proviso to a particular section of a statute is a dominant portion. Ordinarily, after the expiry of four years the assessment cannot be reopened under section 147 of the said Act unless certain conditions mentioned therein are fulfilled. Upon A fair reading of the said section, I find that before four years the assessment can be reopened if it is found that any income chargeable to tax has escaped assessment whereas after the expiry of four years the following conditions are to be fulfilled before assumption of jurisdiction. There must be satisfaction by the Assessing Officer that the assessee concerned has failed to make a return under section 139 of the said Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner or Commissioner is satisfied, on the reasons recorded by the Assessing Officer aforesaid that it is a fit case for the issue of such notice." In the background of the aforesaid interpretation of the section, now this matter has to be examined factually whether the Assessing Officer has taken such steps for assumption of jurisdiction or not. The record has been produced and in the affidavit, the Assessing Officer has recorded his reasons. Upon a careful perusal of this order I do not find the Assessing Officer has reached his satisfaction that the reason for reopening the assessment, is due to the failure on the part of the assessee to make a return under section 139 of the said Act. The matter was placed before the Commissioner but th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manner of application and is not attracted in the facts of the matter under consideration." In the case before the Supreme Court factually all material particulars were supplied with the return, enclosing audit report and the aforesaid decision was rendered in the facts and circumstances as stated therein. A learned single judge of this court in a case reported in Union Carbide (India) Ltd. v. ITO [1973] 87 ITR 529, page 538, has held on the facts therein that when there is a full disclosure of all facts in the returns there cannot be any case of failure on the part of the assessee. Mr. Mitra's contention that the writ court will not interfere with this notice when there are materials or reasons, is not accepted in view of the fact tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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