TMI Blog2018 (9) TMI 106X X X X Extracts X X X X X X X X Extracts X X X X ..... n 37(3A) of the Income Tax Act, 1961. The first ground in the impugned notice is not available to the department to claim that, there is an error of assessment and that, the same has resulted in prejudice to the department. Question of disallowance under Section 37(3A) in the present case, it appears that, the jurisdictional facts required for the purpose of the revisional authority to invoke jurisdiction under Section 263 of the Act of 1961 were not present. In fact, as on the date of issuance of the notice, the second ground based on Shri Shubhlaxmi Mills Ltd. (1989 (3) TMI 2 - SUPREME COURT) may have been available to the revisional authority. However, the subsequent amendments to Section 37(3A) with retrospective effect, took the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judice to the revenue. He submits that, the impugned notice discloses two grounds which the revisional authority claims to be erroneous findings by the Assessment Officer causing prejudice to the revenue. He draws attention of the Court to the two grounds and submits that, neither of the two grounds are available to the revisional authority to claim that, the jurisdictional facts required for the purpose of invocation of Section 263 of the Act of 1961 exist. Consequently, the impugned order should be interfered with. Referring to the impugned notice he submits that, the first ground is a so-called erroneous treatment of expenditure on commission of sales. He relies upon Section 37(3A) of the Income Tax Act, 1961 then existing and submits th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es raised by the writ petitioner in the present writ petition are such that, the same can be looked into and considered by the statutory authorities. The two grounds on which the impugned notice had been issued are best left to be adjudicated by the statutory adjudicating authorities, as they involve both questions of facts and law. The quantum of assessment is required to be adjudicated upon which should be best done by the persons bestowed with the jurisdiction to do so under the Act of 1961. A Writ Court should not interfere therein. In support of his contentions, he relies upon 254 ITR 210 (Indo Asahi Glass Co. Ltd. Anr. vs. Income-Tax Officer Ors.) and (1996) 1 Supreme Court Cases 327 (The Executive Engineer, Bihar State Housing Bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the listed retail price and commission paid to the selling agents did not come within the purview of Section 37(3A) inasmuch as trade discount merely represents lesser realisation of the sale price itself and the commission paid to selling agents are actual selling expenses. The order of assessment has considered disallowance under Section 37(3A), dealt with it elaborately and has given reasons for its findings. Therefore, the revisional authority is incorrect when it say that the assessing officer did not consider disallowance under Section 37(3A) of the Income Tax Act, 1961. The first ground in the impugned notice is not available to the department to claim that, there is an error of assessment and that, the same has resulted in prejudice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, finding that, there was a voluntary disclosure scheme under which the writ petition had applied, allowed to the writ petitioner to reply to the show cause notice. Ramesh Kumar Singh (supra) is a case where the Supreme Court is of the view that, existence of statutory alternative remedy is not an absolute bar to the maintainability of the writ petition. A writ petition is maintainable if, it can be established that, the authority had acted without jurisdiction. In the present case, it appears that, the jurisdictional facts required for the purpose of the revisional authority to invoke jurisdiction under Section 263 of the Act of 1961 were not present. In fact, as on the date of issuance of the notice, the second ground based on Shri Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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