TMI Blog2019 (7) TMI 1053X X X X Extracts X X X X X X X X Extracts X X X X ..... E COURT] If an assessment is pending either by way of original assessment or by way of reassessment proceedings, the Assessing Officer cannot issue a notice under Section 148, but if no proceedings are pending either by way of original assessment or by way of reassessment, he can issue a notice under Section 148 within the time as stipulated. (see Nilofer Hameed and another v. Income Tax Officer, [ 1998 (8) TMI 75 - KERALA HIGH COURT] We are afraid, Section 124(3)(b) of the Act would not save the situation. Section 124 talks about the lack of jurisdiction on the part of the Assessing Officer. In other words, Section 124(3) of the Act stipulates a bar to any contention about lack of jurisdiction of an Assessing Officer. The illegality in the case on hand would not be saved by virtue of Section 124(3) of the Act. We are convinced that the Tribunal applied the correct principle of law and passed the impugned order. We may only say that Section 142(1) and Section 148 of the Act cannot operate simultaneously. There is no discretion vested with the Assessing Officer to utilize any one of them. Such a view would be directly opposed to the decision of the Supreme Court in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act was issued dated 1st December 2011, calling upon the assessee to furnish his return of income for the Assessment Year 2011-12 by 9th December 2011. The assessee, however, did not file his return of income. He submitted a letter dated 3rd January 2012, stating that his books of accounts and other records were seized by the Directorate of Revenue Intelligence and that he had applied to the DRI to provide him with the copy of the books of accounts and other records. The assessee informed the Assessing Officer that he would file his return of income once the DRI would provide him with the books of accounts and other records. 4. It appears from the materials on record that while the assessment proceedings initiated under Section 142(1) of the Act were pending, the Assessing Officer issued notice under Section 148 of the Act dated 16th January 2013, calling upon the assessee to file his return of income for the Assessment Year 2011-12. The assessment proceedings were completed making an addition of ₹ 13,11,73,783=00 on account of the unexplained expenditure under Section 69C of the Act and ₹ 1,00,69,710=00 being the estimation of the net profit. The as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he time limit for completion of assessment already initiated by issuing of notice u/s. 142(1) is 31-03-2014, therefore, issuing of notice u/s. 148 of the act during the pendency of assessment proceedings on 16-01-2013 is bad in law and invalid. The existence of this fact is very clearly demonstrated from the findings of the assessing officer mentioned in his order passed u/s. 143(3) r.w.s 147 of the act on 27th March, that a notice u/s. 142(1) of the act was issued to the assessee on 1st December, 2011 and asked the assessee to file return of income for the assessment year 2011-12 by 9th December, 2011 and in response to the notice u/s. 142(2) of the act the assessee has not filed return of income therefore the assessing officer should have completed the assessment on or before 31st March, 2014 however the case was reopened u/s. 147 of the act by issuing of notice u/s. 148 on 16th January, 2013 which was served upon the assessee on 17.01.2013. In the light of the above facts and legal findings and the decision of the coordinate bench on the identical issue as supra in the case of Medapati Venkayamma vs. ITO vide ITA no. 252/Vizag/2013 as supra we consider that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s on record, we are of the view that the Tribunal committed no error, much less an error of law, in passing the impugned order. 9. It is settled law that unless the return of income already filed is disposed of, the notice for reassessment under Section 148 of the Act cannot be issued, i.e. no reassessment proceedings can be initiated so long as the assessment proceedings pending on the basis of the return already filed are not terminated. ( see Trustees of H.E.H. The Nizam's Supplemental Family Trust v. Commissioner of Income-Tax, (2000)242 ITR 381 (SC) ) 10. If an assessment is pending either by way of original assessment or by way of reassessment proceedings, the Assessing Officer cannot issue a notice under Section 148, but if no proceedings are pending either by way of original assessment or by way of reassessment, he can issue a notice under Section 148 within the time as stipulated. ( see Nilofer Hameed and another v. Income Tax Officer, (1999)235 ITR 161 ) 11. In the aforesaid context, we may also refer to a Division Bench decision of the Patna High Court in the case of Commissioner of Income Tax v. Sayed Rafiqur Rahman, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loss at both the ends is concerned, we may remind the Revenue of the observations made by the Supreme Court in the case of Parashuram Pottery Works Co. Ltd. v. Income Tax Officer, Circle I, Ward A, Rajkot, reported in (1977)106 ITR 1, which read thus : It has been said that the taxes are the price that we pay for civilization. If so, it is essential that those who are entrusted with the task of calculating and realising that price should familiarise themselves with the relevant provisions and become well-versed with the law on the subject. Any remissness on their part can only be at the cost of the national exchequer and must necessarily result in loss of revenue. 16. In the overall view of the matter, we are convinced that the Tribunal applied the correct principle of law and passed the impugned order. We may only say that Section 142(1) and Section 148 of the Act cannot operate simultaneously. There is no discretion vested with the Assessing Officer to utilize any one of them. Such a view would be directly opposed to the decision of the Supreme Court in the case of Commissioner of Income Tax, Bombay City, I, Bombay v. M/s.Narsee Nags ..... X X X X Extracts X X X X X X X X Extracts X X X X
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