TMI Blog2021 (4) TMI 406X X X X Extracts X X X X X X X X Extracts X X X X ..... essee. - W.P.(MD)Nos.7894 and 7895 of 2016 And W.M.P.(MD)Nos.6495 & 6496 of 2016 - - - Dated:- 9-3-2021 - Honourable Mr.Justice G.R.Swaminathan For the Petitioner : Mr.R.Srinivasan For the Respondent : Mrs.S.Srimathy Special Government Pleader COMMON ORDER Heard the learned counsel for the petitioner and the learned Special Government Pleader for the respondent. 2.K.P.S.Enterprises is a partnership firm that is assessed by the respondent. The case on hand pertains to the assessment years 2007-08 2008-09. In response to the notice issued on 31.03.2010 under Section 148 of the Income Tax Act, 1961, the petitioner filed returns and after scrutiny, for the assessment year 2007-08, the assessment order was passed on 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 of the Act would make it clear that no action shall be taken under Section 147 of the Act after the expiry of four years from the end of the relevant assessment years, unless the authority can bring the impugned action under exceptional circumstances set out in proviso itself. It is beyond cavil that the impugned action was taken after the expiry of four years from the end of the relevant assessment years. Therefore, the respondent is obliged to show that the present case would fall under the exceptional category. The exceptional categories read as under:- Provided that where an assessment under sub-section (3) of Section 143 of this section has been made for the relevant assessment year, no action shall be taken under this section aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce on the decision reported in (1999) 155 CTR Mad 165 (Fenner (India) Ltd., Deputy Commissioner of Income Tax). In the said decision, the Hon'ble High Court held that the precondition for the exercise of the power under Section 147 in cases where power is exercised within a period of four years from the end of the relevant assessment year is the belief reasonably entertained by the AO that any income chargeable to tax has escaped assessment for that assessment year. However, when the power is invoked after the expiry of the period of four years from the end of the assessment year, a further precondition for such exercise is imposed by the proviso namely that there has been a failure on the part of the assessee to make a return under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The notice issued by the AO in exercise of his power under Section 147, therefore, cannot be sustained. 22.As the error here is one of jurisdiction, it is not necessary for the assessee to take recourse for the remedies by way of appeal, revision, etc., It is well settled that when a jurisdictional error is brought to the notice of this Court such errors are capable of being corrected by this Court in exercise of the powers conferred under Article 226 of the Constitution of India. The Supreme Court in the case of CIT Vs. Progressive Engineering and another 200 ITR 321 (sic) held that when all the relevant facts were before the Court and the law is clear on the subject, it is the duty of the High Court to interfere. That was also a case w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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