TMI Blog2002 (6) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... t assessment year. He, therefore, submits that in the absence of any averment in this behalf in the affidavit, this court should legitimately presume that no reasons are recorded at least for complying with the second condition precedent required for issuing notice under section 148 of the Income-tax Act, If the existence of these facts is challenged by the assessee before the court, it was obligatory on the part of the Income-tax Officer to satisfy the court even on the second mandatory requirement of the section. In our view the submission is well made out. No material is to be found in the affidavit complying with this second mandatory requirement of section 148 - impugned notice under section 148 are set aside - - - - - Dated:- 11-6-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner in the petition has contended that the notice has been issued by the Income-tax Officer, Ward No. 1, Margao, Goa, without recording reasons and also without complying with the mandatory basic requirements of section 147 of the Income-tax Act. As such the action complained of is without authority of law. On being noticed, the respondents appeared and filed their affidavit in reply, making a bald averment therein to the effect that specific reasons for adopting the status of body of individuals as against association of persons are recorded in the order sheet. However, no copy of the order sheet has been produced along with the affidavit in reply. No reasons for issuing notice under section 148 of the Income-tax Act are to be fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it filed by the Revenue to suggest that there was failure on the part of the assessee to make a return or to disclose fully and truly all material facts necessary for relevant assessment year 1986-87. No indication in this behalf is to be found in the affidavit-in-reply. No such case has been made out by the respondents in their counter-affidavit and/or return. Learned counsel for the petitioner thus contended that the first respondent acted beyond the jurisdiction conferred on him and notice under section 148 of the Income-tax Act is liable to be quashed and set aside. Learned counsel appearing for the petitioner relied on the judgment of the Supreme Court in the case of Madhya Pradesh Industries Ltd. v. ITO [1965] 57 ITR 637 and submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion came up for final hearing on the second occasion in the last 11 years. Thus, considering the pendency of the petition since 1991 and the directions issued by the apex court to hear this petition expeditiously, adjournment sought was refused and accordingly we proceeded to hear this matter. Per contra, learned counsel for the Revenue in the above circumstances relied on the counter-affidavit and tried to justify the action of the Income-tax Officer on the merits. Alternatively, he submitted that alternate remedy by way of appeal being available to the petitioner, this court should not exercise writ jurisdiction under article 226 of the Constitution of India. Considerations: The petitioner, in this petition, specifically challen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cised not for any legitimate purpose for which it may be used, but for the purpose of making a fishing enquiry and to review a previous order made in favour of the petitioner, a rule upon the Income-tax Officer to show cause why the notice should not be set aside and an opportunity to him either to accept or to deny the facts and to set out such other material facts as have a bearing on the question, is at least called for. The apex court also observed that when the party claiming relief challenges on oath the existence of the conditions which confer jurisdiction, and sets out facts which may, unless disproved, support his case an order dismissing his petition in limine may not properly be made out. In the present case, the writ petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion of the petitioner is that the petitioner had disclosed all material particulars of his income, including his status in the return filed by him. As such there was no failure on his part to disclose fully and truly all material facts necessary for his assessment for the relevant year. In this back drop, he further submits that there is no averment in the affidavit to assert that the escapement is by reason of the omission or failure on the part of the assessee to make return or to disclose fully or truly, all material facts necessary for his assessment for the relevant assessment year. He, therefore, submits that in the absence of any averment in this behalf in the affidavit, this court should legitimately presume that no reasons are re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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