TMI Blog2006 (10) TMI 138X X X X Extracts X X X X X X X X Extracts X X X X ..... and RAJESH BINDAL JJ. M. L. Garg, for the petitioner. Mr. S. K. Garg Narwana, for the respondents. JUDGMENT 1. This writ petition seeks quashing of notice dated 31.3.2005, Annexure P.2 issued under section 148 of the Income Tax Act, 1961 (for short, 'the Act') and notice dated 19.12.2005, Annexure P.7 for further proceedings. 2. Case of the petitioner is that it is engaged in the business of banking and its entire income was exempt from tax under section 80P(2)(a) (i) of the Act. The petitioner was being allowed exemption from tax for about 40 years. For the assessment year 1999-2000, the petitioner filed return under section 139(1) of the Act, claiming that its entire income was exempt under section 80P(2)(a)(i) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in Commissioner of Income Tax v. Kelvinator of India Limited, (2002) 256 ITR 1[FB]. 4. Reply has been filed justifying re-opening of assessment and the reason given for invoking jurisdiction to re-assess, inter-alia, on the ground that guideline No.10 of 2003 issued by the Central Board of Direct Taxes (CBDT) on 26.9.2003 (Annexure R-1) was that all cases of Public Sector Undertakings and Banks shall fall under compulsory scrutiny for the assessment year 2002-03. It was for this reason that during the said year, the assessing officer applied his mind and found that certain deductions were wrongly allowed and on that basis, the assessing officer decided to reopen the case for the year 1999-2000. Objections of the petitioner on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that mere change of opinion was not enough for invoking Section 147 of the Act. Referring to legislative history of the provision and Circular No.549 dated 31.10.1989 ((1990) 182 ITR(ST) 1 at page 28), it was noticed that on account of scheme adopted by Amending Act 1987, returns will be accepted as such and passing of assessment orders will not be necessary unless a case is picked up for scrutiny and on account of this situation, Section 147 of the Act had to be amended. However, the view of Gujarat High Court in Praful Chunilal Patel v. Makwana (M.J.), CIT (Asst.) (1999) 236 ITR 832, to the effect that where no assessment was earlier made, the assessing officer could not be attributed application of any mind, was dissented from on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ible view the order cannot be changed by way of exercising the jurisdiction of rectification of mistake. It is a well settled principle of law that what cannot be done directly cannot be done indirectly. If the Income Tax Officer does not possess the power of review, he cannot be permitted to achieve the said object by taking recourse to initiating a proceeding of reassessment or by way of rectification of mistake. In a case of this nature, the Revenue is not without remedy. Section 263 of the Act empowers the Commissioner to review an order which is prejudicial to the Revenue." 8. The matter has also been considered by this Court in Swaraj Engine Limited v. Assistant Commissioner of Income Tax and another, (2003) 260 ITR 202, w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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