TMI Blog2001 (8) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... such notice and assessment proceedings are wholly without jurisdiction. The facts of the case briefly are as follows: The writ petitioner is the sole executor to the estate of Sundar Devi Rampuria who died on October 28, 1975, leaving a registered will dated May 6, 1964 (hereinafter referred to as "the said deceased"). A probate of the said will has been granted to the petitioner. According to the petitioner, apart from the status of the said executor to the estate of the said deceased, the petitioner is also regularly assessed separately with his own income in the status of an "individual". The petitioner duly filed a return for the assessment year 1989-90 as sole executor. The petitioner has further contended before this court t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1990-91 was duly completed by the Assessing Officer under section 143 rejecting the claim of the petitioner to adjust the loss amounting to Rs.1,09,540 in respect of the share dealing business. An appeal was duly preferred by the petitioner before the first appellate authority which was duly allowed by the said authority whereby the appellate authority held that the disallowing of the loss from the computation of the total income was not justified by the Assessing Officer. In these circumstances, the learned advocate appearing on behalf of the petitioner contended that further assessment is not permissible under the law and, therefore, the impugned notice under section 148 of the said Act is invalid and is liable to be quashed. He further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o make assessment for the escaped income. He further submitted that the change of opinion is not permissible in a proceeding under section 147 of the said Act. In support of his submission, he relied upon the judgments reported in Allahabad Bank v. CIT [1993] 199 ITR 664 (Cal); CIT v. Bhanji Lavji [1971] 79 ITR 582 (SC) and CIT v. Gujarat Ginning and Manufacturing Co. Ltd. [19941 205 ITR 40 (Guj). He further contended that the service of the notice is a condition precedent for initiation of the proceedings under section 147 of the said Act. According to him, if no notice is issued or if the notice is issued, it can be shown that the same is invalid in that case. Steps taken thereunder should be treated as illegal. He further submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . There is no necessity of communicating the reasons of notice under section 148 of the said Act. In support of such submission, he relied upon the judgments reported in Ajantha Industries v. CBDT [1976] 102 ITR 281 (SC) and Gulabrai Hanumanbux v. WTO/ITO [1989] 178 ITR 519 (Gauhati). He also contended that both the notice as well as service is valid and any mistake in the description of the petitioner does not invalidate the same. Section 292B of the said Act was introduced with effect on and from October 1, 1975. In support of such contention, he relied upon the judgments reported in L. Devarajan v. Tamil Nadu Farmers Service Co-operative Federation [1981] 131 ITR 506 (Mad) and Mahadeo Biscuits and Confectionery Works v. CIT [1987] 166 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de before me I have considered the case of the petitioner and the respondent. At this stage, in my opinion, it would be proper for me to quote section 148 of the said Act which is reproduced hereunder: " 148. Issue of notice where income has escaped assessment.-(I) Before making the assessment, reassessment or recomputation under section 14 7, the Assessing Officer shall serve on the assessee a notice requiring him to furnish within such period, riot being less than thirty days, as may be specified in the notice, a return of his income or the income of any other person in respect of which he is assessable under this Act during the previous year corresponding to the relevant assessment year, in the prescribed form and verified in the presc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons have been disclosed in the said affidavit-in-opposition which has been filed before me. I do not have any hesitation to hold that the Assessing Officer has authority to issue such notice. It further appears that the reasons were duly recorded in the file which appeared in the affidavit in-opposition and further it has been held by the court that it is not necessary for communication of the reasons for issuance of notice under section 148 of the said Act. Therefore, I do not have any hesitation to accept the contention of the learned advocate appearing on behalf of the respondents. It further appears that the section itself empowers the Assessing Officer to assess and reassess, therefore, there cannot be any reason on the facts of this c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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