TMI Blog2009 (5) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 CM No. 16818/2007 WITH WP(C)No. 8904/2007 CM No. 16819/2007 Mr. N. Venkatraman, Sr. Adv. with Mr. Achin Goel, Adv. for the appellant. Mr. Sanjeev Sabharwal, Adv. for the respondent. JUDGMENT The judgment of the court was delivered by VIKRAMAJIT SEN, J. - The legal nodus that arises in these Appeals relates to the legal propriety of notices issued under Section 148 of the Income Tax Act, 1961 (Act for short). Briefly stated, Jal Hotels Company Ltd. had, along with its Returns, filed copies of four Agreements that it had entered into with Sunair Hotel Ltd. - viz. (a)Hotel Management Agreement, (b)Technical Services Agreement, (c)Marketing Service Agreement and (d) Licence Agreement. The Assessment Orders dated 28.3.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same would amount to giving a premium to an authority exercising quasi-judicial function to take benefit of its own wrong". This is also the approach adopted by this Bench in ITA No.485/2008 titled CIT vs. Ashish Rajpal decided on 14.5.2009. We make mention of this position of the law because it has been contended before us that on a reading of Assessment Order it is not clear whether the Assessing Officer had cogitated upon these four Agreements. 2. The impugned Notice under Section 148 of the Act mentions these Agreements and observes that "the assessee is running, managing and operating Hotel through Permanent Establishment, the income that the assessee earned through Permanent Establishment, has escaped assessment". Predic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12 which elucidates that it is necessary for new material to come to light in order to justify the issuance of notice under Section 148, the Respondent has come to the contrary conclusion. 3. As has already been noted above, Bawa Abhai Singh in which D.K. Jain, J., as his Lordship then was, had spoken for the Division Bench [D.K. Jain, J. was also a member of the Full Bench in Kelvinator] was duly considered in Kelvinator. The Respondent has relied on Consolidated Photo and Finvest Ltd. Vs. ACIT, [2006] 281 ITR 394 which, being irreconcilable with the Full Bench view in Kelvinator, is per incuriam as has been so observed in KLM Royal Dutch Airlines vs. ADIT, [2007] 292 ITR 49(Delhi). Regretfully, the Assistant Director of Incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to the case before us, we find it difficult to come to any conclusion other than that the case in hand represents those genre of cases in which there has been a change of opinion. One of the tests prescribed in Techspan was to investigate whether any new material had come to the notice of the officer concerned which material would constitute "reason to believe". This new material is wholly missing in the case in hand. Our study would become more comprehensive with the mention of CIT vs. P.V.S. Beedies Pvt. Ltd., [1999] 237 ITR 13. In that case, the internal audit party had pointed out that the Trust to which donations had been made by the assessee did not qualify for deduction under Section 80G as the recognition had expired. Their Lo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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