TMI Blog1999 (4) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... r a sum of Rs. 1,75,000. As against this, you have paid a sum of Rs. 7,00,000 to the seller of the land. Furthermore, you have paid a sum of Rs. 75,000 to a third party which was not required to be paid. Under these circumstances, there is escapement of income chargeable to tax. " 2. The assessee urges that assumption of jurisdiction under s. 148 r/w s. 147 was without authority of law. It was pointed out that there has been no failure to disclose truly and fully all material facts necessary for the assessment of asst. yr. 1987-88 on the part of the assessee. Any satisfaction to that effect has not even been recorded by the AO in his reasons. Therefore, any action under s. 147 beyond four years from the end of relevant assessment year was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... along with civil application seeking permission to serve the same on the assessee, therefore, now the assessee should be left to avail alternative remedy of challenging the order in appeal on merit as well as on the ground as to the jurisdiction of the AO to initiate proceedings. 6. Having carefully considered we are not inclined to accept the plea that the petition should be dismissed on the ground of availability of alternative remedy against the final order of assessment which has come to be passed during pendency of this petition. It would be apposite to produce the order of interim relief made on 8th Oct., 1993: "Rule. Heard the learned counsel appearing for the parties as regards interim relief. In our opinion, it would not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that were to come into existence during the pendency of the proceedings, there being no stay against it to be within the period of limitation, would not affect the hearing of the petitioner on merit and the final order would be subject to the decision in this special civil application. 8. Moreover, the petitioner in this case raises the question of inherent lack of jurisdiction which would entitle it to writ of prohibition as a matter of course. If on account of the order passed in interim relief, the writ of prohibition becomes inappropriate to be issued in the changed circumstances in case of inherent lack of jurisdiction is made out, the petitioner would be entitled to writ of mandamus, or certiorari or other appropriate direction a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt year." 11. It is not the case of the Revenue either that there is any failure on the part of the assessee to make a return under s, 139 or in pursuance of notice under s. 142(1) or s. 148. Reasons recorded by the AO which is a sine qua non before assuming jurisdiction to issue notice does not record any satisfaction of the AO that the alleged escapement of income from tax is by reason of failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment for that assessment year. Apart from this lapse of recording the satisfaction on the part of the AO the order made under s. 143(3) for the asst. yr. 1987-88 clearly records the material facts referred to by the AO for the reasons recorded by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent proceedings for the asst. yr. 1987-88, therefore, it cannot be by any stretch of imagination a case where the escapement of income-,from assessment is on account of failure on the part of assessee to disclose fully and truly all the material facts necessary for the asst. yr. 1987-88. As reasons recorded by the AO and the order under s. 143(3) read together clearly negatives the reason of the escapement being attributed to failure on the part of the assessee to disclose fully and truly all the material facts necessary, the further consequence is not in dispute. The initiation of proceeding under s. 147 could not have been beyond four years from the end of relevant assessment year that is to say within four years from 31st March, 1988, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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