9911796707
TMI Blog2002 (6) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... ove notice on the grounds that he has a reason to believe that the petitioner's income in the status of body of individuals (BOI) chargeable to tax for the assessment year 1986-87, has escaped assessment, within the meaning of section 147 of the Income-tax Act, 1961, and that, therefore, he proposes to reassess the petitioner's income for the said assessment year. He has required the petitioner to deliver to him a return in the prescribed form, of the petitioner's income for the said assessment year 1986-87. The petitioner, after receipt of the aforesaid notice under section 148 of the Income-tax Act, by letter dated April 19, 1991, called upon respondent No. 1, Income-tax Officer, to disclose the reasons, if any, recorded by him before i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Income-tax Officer had no material before him for entertaining the belief that income chargeable to tax has escaped to be assessed. In the submission of the petitioner two conditions precedent are required to be fulfilled before the Income-tax Officer can exercise jurisdiction under clause (a) of section 147 of the Income-tax Act. These conditions are: "(i) He must have reason to believe that the income has escaped assessment; and (ii) that such escapement is by reason of the omission or failure on the part of the assessee to make a return or to disclose fully and truly all material facts necessary for his assessment for the relevant year." The petitioner further submitted that if the existence of these facts is challenged by the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re this court. As a matter of fact, affidavit in reply has been filed on record in the month of June, 2001. It was open for the respondents to produce relevant material along with their affidavit. We do not approve this method of producing documents across the Bar. Ample opportunity and time was available to the respondents to produce adequate and relevant material in support of their defence as the petition is pending since 1991. This petition was dismissed by this court in limine by order dated November 19, 1991. The matter was carried to the apex court in Civil Appeal No. 7314 of 1996 Comunidado of Chicalim v. ITO [2001] 247 ITR 271. The order of this court dismissing the petition in limine, came to be set aside in appeal by order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atisfied that the conditions precedent did exist at the time the notice was issued, the challenge may be turned down by the court. In the absence of any material whatsoever placed by the Income-tax Officer to disprove the challenge of the assessee to the existence of the conditions precedent, the writ petition cannot be dismissed. Reference may be made in this connection to the decision of the Supreme Court in the case of Madhya Pradesh Industries Ltd. [1965] 57 ITR 637, that was a case under section 34 of the Indian Income-tax Act, 1922 (corresponding to section 148 of the Income-tax Act). The notice was challenged by the assessee before the High Court by filing a writ petition. The High Court dismissed the writ petition in limine. The ape ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Revenue in respect of jurisdiction of the Income-tax Officer, this writ petition should be allowed. The impugned notice should be quashed and set aside. Our attention has also been drawn to the decision of this court in Devji Ravji Patel [1994] 210 ITR 925, 928, wherein relying on the above decision in Madhya Pradesh Industries Ltd. [1965] 57 ITR 637, 641 (SC), this court held that "neither the contention whether the disclosure made by the assessee was full and true in respect of all material facts necessary for the assessment can be determined in the absence of an affidavit by the Income-tax Officer, nor the plea that the impugned notice was issued with a collateral object rejected without an enquiry." The aforesaid decision squar ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
