High Court Of Calcutta
Orient Engineering & Commercial Co. Ltd. vs. DCIT & Anr.
Sections 154, 155, Art. 226
Asst. Year 1990-91
Pinaki Chandra Ghose, J.
Matter No. 164 of 1994
24th August, 2001
PINAKI CHANDRA GHOSE, J. :
In this instant application the petitioner has challenged a show-cause notice issued by the authorities under s. 154/155 of the IT Act (hereinafter referred to as the said Act). According to the petitioner, the respondent No. 1 has no competence, authority and/or jurisdiction under s. 154 of the said Act and to initiate the proceedings on the alleged reasons for the asst. yr. 1990-91. Furthermore, the petitioner has contended that the exercise of power by the said authorities and to assume jurisdiction is a condition precedent and having not been satisfied the requirements of law which has not been fulfilled the same. The notice is issued and the proceedings initiated for rectification of mistake are invalid, illegal and arbitrary.
2. It is further contended that the notice has been issued without application of mind. It is further contended that the mistake as alleged, apparent on the record is not an obvious and patent mistake, but something which can be established by a long drawn process of reasoning on points on which there may be conceivably two opinions and a decision of the respondent No. 1 is debatable on a point of law which cannot be said to be a mistake apparent from the record. Accordingly, it is submitted that the said notice and reasons thereunder are illegal, invalid and without jurisdiction and are liable to be set aside and/or quashed. It is also contended that the assessment for the said year was also completed and, therefore, the said respondent has no right to issue the said notice.
3. Dr. Pal appearing on behalf of the petitioner relied upon judgments in T.S. Balaram, ITO vs. Volkart Brothers & Ors. (1971) 82 ITR 50 (SC) : TC 53R. 165 and T.S. Balaram, ITO vs. Volkart Bros. AIR 1971 SC 2204 [Judgment seems to be one and sameâEd.] in support of his contention and submitted that this notice should be quashed.
4. Respondents appeared before me and contended that the assessment of income-tax of the petitioner for the asst. yr. 1990-91 has been completed on 15th March, 1993. But subsequently, the ITO noticed that in the reports of the auditor which were annexed in the return for the said assessment year, certain amounts were mentioned relating to earlier year. As such, accounts related to earlier years unless ascertained during the accounting year are not allowed as deduction. But the auditorâs notes were silent about the time of ascertaining the said amount.
5. Learned advocate appearing on behalf of the respondents also submitted that the notice under s. 154 of the IT Act was issued only to ascertain whether the impugned amounts noted by the auditor in his reports were the same as were determined, verified and appreciated during the assessment proceeding. He further submitted that since the assessments were completed and since the auditorâs comment was not specific, the amount becomes prima facie inadmissible and thus the said notice was issued in good faith. The initiation of the proceeding under s. 154 of the Act was to bring on record that the amount mentioned by the auditors were admissible in law. So, the action was bona fide and legal. The notice under s. 154 of the Act called for written submission for the petitioner.
He also contended that on 7th Jan., 1994, the petitioner filed an objection to the said notice under s. 154 of the Act and the petitioner filed an adjournment/application praying for some time and the AO granted the said prayer and adjourned the same till 18th Jan., 1994. But the petitioner moved the writ petition on 12th Jan., 1994.
According to him, the notice under s. 154 of the Act issued by the AO, who had jurisdiction to issue the same. Writ petitioner had enough opportunity to explain his case. Assessee should avail of alternative remedy which is provided in the Act. Writ should not be issued to quash the notice. In support of such submission he relied upon a judgment Brooke Bond Lipton India Ltd. vs. CIT & Ors. (1997) 137 CTR (Cal) 579 : (1996) 222 ITR 540 (Cal) : TC 57R.630. He also contended that where there was no irregularity and/or illegality in the notice and there is no lack of jurisdiction to initiate the rectification proceeding, the writ should not be issued to quash the notice. In support of such contention he relied upon judgments Radharani Tea & Estate (P) Ltd. vs. ITO (1989) 78 CTR (Cal) 190 : (1990) 184 ITR 581 (Cal) : TC 53R.632 and Harbanslal Malhotra & Sons Ltd. vs. ITO & Ors. (1989) 177 ITR 46 (Cal) : TC 56R.1321 and he submitted that the petition should be dismissed for the aforesaid reasons.
8. After considering the facts and circumstances of this case in my opinion the judgment cited by Dr. Pal has no relevance in the facts and circumstances of this case. In the instant case the respondent authorities have already issued the show-cause notice giving a chance to the petitioner to appear before them and to place the records for the appropriate steps to be taken by the AO. Accordingly, in my opinion it would be proper for me not to interfere in the matter at this stage since it appears to me that the notice which was issued by the respondents to the petitioner only for the purpose of initiating the rectification proceeding. In my opinion there is no irregularity and/or illegality in issuance of the said notice. The petitioner has ample opportunity to appear before the said authorities and to place his facts before the said authorities. Therefore, I do not wish to interfere in the matter at this stage and I direct the petitioner to appear before the said authorities and the authorities after giving a hearing to the petitioner shall pass a reasoned order in accordance with law preferably within 8 (eight) weeks from the date of communication of this order.
For the reason stated hereinabove, this application is disposed of.
[Citation : 252 ITR 573]