TMI Blog2000 (8) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... judge was of the view that the writ petition is premature and the assessee has alternate remedy. Therefore, no relief can be granted under article 226 of the Constitution of India. The assessment year is 1984-85. The previous year ended on December 31, 1983. The assessment was made under section 143(3) of the Act of 1961, on March 27, 1986. The notice under section 148 of the Act has been issued on March 28, 1995, for reopening of the assessments as income escaped assessment on two items, i.e., (1) Rs. 38,435 relating to alleged under-invoicing, and (2) Rs. 37,77,395 in respect of claim for depredation on generators. The assessee is a manufacturer of tyres and during the relevant year two manufacturing units were under operation and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her and in what cases the Assessing Officer has jurisdiction to issue notice under section 148. In ITO v. Lakhmani Mewal Das [1976] 103 ITR 437 (SC) while considering the issue what are the conditions precedent for issue of notice under section 148 their Lordships observed at page 445 as under : "It would appear from the perusal of the provisions reproduced above that two conditions have to be satisfied before an Income-tax Officer acquires jurisdiction to issue notice under section 148 in respect of an assessment beyond the period of four years but within a period of eight years from the end of the relevant year, viz., (1) the Income-tax Officer must have reason to believe that income chargeable to tax has escaped assessment, and (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not responsibility of the assessee to advise the Income-tax Officer with regard to the inference which he should draw from the prime facts. If an Income-tax Officer draws an inference which appears subsequently to be erroneous, mere change of opinion with regard to that inference would not justify initiation of action for reopening assessments": In Ganga Saran and Sons P..Ltd. v. ITO [1981] 130 ITR 1 (SC), at page 11, their Lordships have observed as under : "It is well settled as a result of several decisions of this court that two distinct conditions must be satisfied before the Income-tax Officer can assume jurisdiction to issue notice under section 147(a). First, he must have reason to believe that the income of the assessee has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered by him on the basis of the facts disclosed or otherwise, the assessing authority has to draw inferences as to certain other facts. But on the primary facts, it is for the taxing authority to draw inferences : it is not necessary for the assessee to draw inferences for him." In the light of the above observations we have to consider whether before issue of the notice under section 148 the Income-tax Officer has satisfied these two conditions. For that we have to refer to the material available to the Income-tax Officer at the time of original assessment under section 143(3) of the Act. The admitted facts are that before the completion of the assessment order, the assessee filed a revised return on November 24, 1986, and in the rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on on the various assets of "Factory-III" was shown at Rs. 8,63,60,776 vide annexures D and E. At page 39 of the G. A. under item 10 "Power supply and distribution" there is a reference regarding addition of further DG sets and other assets in respect of "Factory-III" have been given. Section wise details have been given at pages 39 to 49 of G. A. in the brief note submitted it was also clarified that "Factory-III" started production only in March, 1984, that is in the assessment year 1985-86. Therefore, the depreciation was claimed only in respect of the generators and on the building in which the generators were installed. In the assessment made under section 143(3), the Income-tax Officer has allowed only normal depreciation but no ext ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r section 148 read with section 147 of the Act. The other item which has been made a ground for the notice is the amount of Rs. 38,435. Learned counsel for the assessee submits that the assessment was made on March 27, 1986, and in view of the provision of section 149(1)(a)(ii) which provides that notice under section 148 can be issued for the relevant assessment year if not more than seven years have elapsed from the end of the relevant assessment year and unless the income chargeable to tax which has escaped assessment is likely to amount to Rs. 50,000 or more in that year. Here the income escaped in item No. (1) is less than Rs. 50,000, i.e., Rs. 38,435 and, admittedly, the notice is issued dated March 28, 1995, that is beyond seven ..... X X X X Extracts X X X X X X X X Extracts X X X X
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