TMI Blog2018 (12) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... s business need to be examined in proper perspective keeping in mind the objections of the partnership firm and such exercise should be allowed to be done at the level of the Assessing Officer. At this stage, we do not propose to thwart the assessment pursuant to the impugned notices. Firstly, at this stage, in a writ petition we would not go into the minute factual details when said factual aspects can be and should be considered by the Assessing Officer before whom the proceedings are pending. In this context, we may refer to the judgment of the Supreme Court in the case of Commissioner of Income Tax Vs. Vijaybhai N. Chandrani [2013 (7) TMI 740 - SUPREME COURT]. It is the case, in which the assessee had approached Gujarat High Court challenging show cause notice under Section 153C of the Act contending that during the search conducted by the Department against another person, no material belonging to the assessee was found and, therefore, action against the assessee under Section 153C of the Act was invalid. Under the circumstances, keeping the petitioner's factual and legal contentions and objections open, we relegate the petitioner before the Assessing Officer. Once the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment has also taken an objection that the petitioner did not raise objection of the Assessing Officer within the time permitted under sub-section (3) of Section 124 of the Act. 4. In the background of the such facts, learned Counsel for the petitioner raised following contentions : (i) No search was initiated against the partnership firm. Notice under Section 153A of the Act, therefore, could not have been issued. He pointed out that there is a difference between search authorization and initiation of search, by relying on the decision of the Karnataka High Court in the case of Commissioner of Income Tax Vs. Wipro Finance Ltd. 323 ITR 467 . He agreed that in the present case, search authorization was issued against the partnership firm but according to him since no search was actually carried out, it cannot be stated that the search was initiated against the partnership firm. (ii) Learned Counsel submitted that for the purpose of the Income Tax Act, a partnership firm and its partners are treated as separate independent entities. The search carried out at the premises of the partners cannot be equated with the search against the partnership firm. In this context, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n would not be sufficient. There is clear distinction between search authorization and conduct of the search. In sub-section (1) of Section 153A of the Act, therefore, the legislature has advisably used expression where a search is initiated under Section 132 . 7. We are also in agreement with the contention of the Counsel for the petitioner that the petitioner's objection to the jurisdiction of the Assessing Officer on the ground that if no search was initiated, notice under Section 153A of the Act could not have been issued, cannot be curtailed on the ground that such objection was raised beyond the period referred to in sub-section (3) of Section 124 of the Act. Section 124 of the Act pertains to jurisdiction of Assessing Officers. Sub-section (1) of Section 124 lays down territorial jurisdiction of the Assessing Officer. Sub-section (2) of Section 124 provides that where the question arises under said section, as to whether an Assessing Officer has jurisdiction to assess any person, such question shall be determined by the authority prescribed under the said sub-section. Sub-section (3) of section 124 provides time limits for a person to call in question jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lary Steels and Alloys Ltd. Vs. Deputy Commissioner, Commercial Taxes (Assessment) (2009) 17 SCC 547, this Court had allowed the assessee therein to withdraw the original writ petition filed before the High Court as the said proceedings came to be filed against the show cause notice and observed that the High Court should not have interfered in the matter as the writ petition was filed without even reply to the show cause notice. This Court further observed as follows: 3 ... In the circumstances, we could have dismissed these civil appeals only on the ground of failure to exhaust the statutory remedy, but for the fact that huge investments involving the large number of industries are in issue. 16. In the present case, the assessee has invoked the writ jurisdiction of the High Court at the first instance without first exhausting the alternative remedies provided under the Act. In our considered opinion, at the said stage of proceedings, the High Court ought not have entertained the writ petition and instead should have directed the assessee to file reply to the said notices and upon receipt of a decision from the assessing authority, if for any reason it is aggrieved by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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