High Court Of Gauhati
Jorehaut Group Ltd. vs. Union Of India & Ors.
Section 147
Asst. Years 1996-97, 1997-98, 1998-99, 1999-2000, 2000-01
D. Biswas, J. Civil Writ Petn. Nos. 586 to 590 of 2004
24th January, 2006
Counsel Appeared
Dr. A.K. Saraf, D. Baruah, S.K. Agarwal & K.K. Jain, for the Petitioner : U. Bhuyan, for the Respondents
JUDGMENT
D. Biswas, J. :
These batch of writ petitions are taken up together for disposal in terms of the judgment and order passed by this Court on 11th March, 2005, in Assam Co. Ltd. vs. Union of India (Writ Petn. (C) No. 1163 of 2003, disposed of on 11th March, 2005, reported at (2005) 197 CTR (Gau) 659 : (2005) 275 ITR 609 (Gau). The writ petitions have been filed by the assessees challenging the legality and validity of the impugned notices dt. 28th March, 2003, and 6th Jan., 2004, issued by the respondent authority under the provisions of ss. 148, 142 and 143(2) of the IT Act, 1961. The writ petitioners are public limited companies incorporated under the Companies Act, 1956, and are engaged in the business of cultivation, manufacture and sale of tea cultivated in its tea gardens in the State of Assam. They were served with the aforementioned notices for reassessment of the income of the petitioner for the asst. yrs. 1996-97 [in WP (C) No. 586 of 2005]; 1997-98 [in WP (C) No. 587 of 2005]; 1998-99 [in WP (C) No. 588 of 2005]; 1999-2000 [in WP (C) No. 589 of 2005]; and 2000-01 [in WP (C) No. 590 of 2005] as escaped assessment within the meaning of s. 147. The aforesaid orders were passed by the Dy. CIT, Special Range-II, Guwahati, and the assessment orders dt. 24th Feb., 1998 [in WP (C) No. 586 of 2005], 23rd June, 1998 [in WP (C) No. 587 of 2005], 10th Nov., 1999 [in WP (C) No. 588 of 2005], 26th March, 2001 [in WP (C) No. 589 of 2005] and 26th March, 2001 [in WP (C). No. 590 of 2005] were challenged before the CIT(A). The CIT(A) set aside the said assessment orders and directed the assessing authority to reconsider and pass fresh orders. Accordingly, the AO revised the earlier assessment orders under the provisions of s. 251 and determined the total income of the petitioner at Rs. 4,87,220 and the revised tax refund thereon at Rs. 49,970 in Writ Petn. (C) No. 586 of 2004. Similar orders have also been passed in other writ petitions. Thereafter, the impugned notices were received by the writ petitioners whereby they have been directed to submit their return for reassessment within a period of thirty days. The petitioner also requested the taxing authority to furnish them with the reasons for reopening the assessment for the aforesaid assessing years. According to the writ petitioners, all materials and necessary facts were placed before the assessing authority. Therefore, there is no good reason for reopening of the assessment made final after taking into consideration all material facts submitted at the time of assessment. Dr. Saraf, learned senior counsel argued that the deduction allowable on account of cess on green leaves has to be allowed on composite income. Dr. Saraf further argued that the issues raised in these writ petitions were also dealt with in an earlier case, i.e., Assam Co. Ltd. (supra) and the reasons recorded therein hold good for the cases at hand. In the said judgment, the learned Single Judge observed as follows :
The purported interpretation of the decision of this Court in Jorehaut Group Ltd. vs. Agrl. ITO (1997) 226 ITR 622 (Gau), cited as the reason for invocation of power under s. 147 of the Act in view of the above determination is plainly unsustainable. Consequently, the reason recorded in the impugned notices has to be construed as non est in law. It not having been held by this Court in Jorehaut Group Ltd. (supra), that the assessee is entitled to deduction on the cess on green leaves only from 60 per cent of the composite agricultural income, the very foundation of the reason for the impugned action is missing. Not only has the concerned authority misread the reported decision, there appears to have been a total non-application of mind to the relevant legal provisions. The present thus is not only a case where no reason exists for invoking the power under s. 147 of the Act but also is one where the so-called belief is not a bona fide one being patently imaginary in the accompanying facts and circumstances of the case. The notices impugned in the above premises, therefore, cannot be sustained in law and on facts and are hereby quashed.” Therefore, there appears to be no difference in the factual matrix of the cases at hand with those of Assam Co. Ltd. (supra). The reasons recorded in para 42 of the judgment, quoted above, are also applicable in the instant cases. Consequently, the impugned notices are liable to be set aside.
5. In the result, the writ petitions are allowed and the impugned notices dt. 28th March, 2003, and 6th Jan., 2004, being illegal and without jurisdiction are hereby quashed. No order as to costs.
[Citation : 289 ITR 419]
