TMI Blog2019 (2) TMI 323X X X X Extracts X X X X X X X X Extracts X X X X ..... are entitled to do so. Section 154 can be invoked to correct an error apparent on the face of the record. An order of assessment must be in tune with the law laid down by a binding precedent. The subject orders of assessment not being in terms of the ratio of Apeejay (supra) contains errors. An error in an order not in consonance with a binding precedent is an error apparent on the face of the record. - W.P. No. 1096 of 2000 - - - Dated:- 29-1-2019 - DEBANGSU BASAK, J. For the Petitioner : Mr. J.P. Khaitan, Sr. Advocate Mr. Somak Basu, Advocate For the Respondent : Mr. Vipul Kundalia, Advocate Ms. Nabonita Karmakar, Advocate Ms. Hera Nafis, Advocate Mr. Yogesh Vat, Advocate DEBANGSU BASAK, J.:- The petitioner has challenged 3 notices, all dated March 21, 2000, issued under Section 154 of the Income Tax Act, 1961 for the assessment years 1991-92, 1992-93 and 1993-94. Learned senior advocate appearing for the petitioner has submitted that, the impugned notices are without jurisdiction. According to him, section 154 of the Income Tax Act, 1961 can be invoked only when there is an error apparent on the face of the record. According to him, the assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income Tax Report page 710 (Jiyajeerao Cotton Mills Ltd. v. Income-Tax Officer, C Ward, Companies District I, Calcutta Ors.). Subsequent exposition of law cannot form basis of a rectification proceedings and in support of such contention he has relied upon 2003 Volume 237 Income Tax Reports page 237 (Geo Miller and Co. Ltd. v. Deputy Commissioner of Income Tax Ors.). He has submitted that, 1994 Volume 206 Income Tax Report page 367 (Cal) (Appeejay Pvt. Ltd. v. Commissioner of Income-Tax) cannot form the basis of the proceedings under section 154 of the Act of 1961. The judgment and order of Appeejay Pvt. Ltd. (supra) was delivered on September 10, 1991 and the impugned notices were issued on March 21, 2000. In any event, the factual aspects as to whether or not, the petitioner installed new machineries at the units, is required to be looked into. In support of the contention that, blending is a manufacturing activity, learned senior advocate appearing for the petitioner has relied upon 1998 Volume 109 STC page 265 (Kar) (Brooke Bond Lipton India Ltd. v. State of Karnataka). Relying upon 2003 Volume 262 Income Tax Report page 237 (Geo Miller Co. Ltd. v. Deputy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s) and Laws (SC) 2017 Page 85 : 2017 Volume 15 Supreme Court Cases page 254 (Commissioner of Income-Tax 1, Mumbai v. M/s. Hindustan Petroleum Corporation Ltd.) in support of his contentions. He has submitted that, no interference is called for in the present writ petition. As noted above, three show cause notices are under challenge in the present writ petition. Courts are slow to interfere with show cause notices. It has to be established that, the show cause notices are patently without jurisdiction or have been issued in abuse of the process of law or with a closed mind for a Court to interfere at the show cause notice stage. Interference by the Court at the show cause notice stage is an exception. If it is contended that, the legal premises upon which the show cause notices have been founded are without any basis, then the same would constitute a jurisdictional fact which should ideally be left to the authority to decide at the first stage. In Indo Asahi Glass Company Limited and another (supra) the writ petition against the show cause notice was dismissed by the single judge on the ground that, alternative remedy was available. In appeal, the Division Bench held the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessment order for the assessment year 1993-94 was passed on March 29, 1996. The assessing officer ought to have applied the ratio of Apeejay (supra) in the assessment orders. There are, therefore, errors apparent on the face of the record, in respect of the 3 assessment orders for the relevant assessment years. It cannot be said that, the impugned show cause notices have been issued patently without jurisdiction or in abuse of process of law or with a closed mind. The assessee may reply to the show cause notices and set up such just defences as are available to it in law. It has been contended on behalf of the petitioner that, the issue sought to be addressed by the impugned show cause notices are debatable. According to the petitioner, the issue was not settled on the date of issuance of the show cause notices. According to the petitioner whether blending, packing and export of tea packets would constitute manufacture or not is debatable. Reliance has been placed on TATA Tea Limited (supra) in support of such contention. TATA Tea Limited (supra) has been rendered in the context of Section 10B of the Income Tax Act, 1961. It has been rendered in the context of consider ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
