Madhya Pradesh H.C : Whether the impugned notice issued under s. 148 of IT Act (Annexure P4) is legal and proper ?

Counsel Appeared

S.S. Samvatsar, for the Petitioner : None, for the Respondent

ORDER

A.M. SAPRE, J. :

The short question that falls for consideration in this writ filed by the petitioner (assessee) is whether the impugned notice issued under s. 148 of IT Act (Annexure P4) is legal and proper ? Few facts to decide this short question need mention.

The petitioner is a private limited company. It is engaged in the business of stitching garments. The petitioner filed a return of their income for the year 1988-89 on 15th May, 1989. The concerned AO accepted the return as per provisions of s. 143 (1) as it then stood after making prima facie adjustment. In other words, the order that was passed by the AO was not an order falling under s. 143(3) ibid as a regular assessment order but it was only in the nature of adjustment of the total income of the petitioner (assessee) an contemplated under s. 143(1)(b) ibid which enabled the AO to accept the returned income. It was accordingly communicated to assessee on 28th Jan., 1989.

On 25h March, 1983, the IT Department (concerning officer) issued a notice under s. 148 for reopening of the said assessment (1988-89) (Annexure P4). It is this notice which is impugned by the assessee (petitioner) in this petition.

The respondent (Revenue) filed a return and defended the issuance of impugned show-cause. According to respondent, there are valid reasons for issuance of notice for reassessment which even could not be done as a regular assessment under s. 143(3) ibid. It was contended that the reasons that compelled the Revenue to issue notice were very much available on record and they were valid reasons empowering the Department to issue notice in question. In support of the return, copy of reasons recorded prior to issuance of impugned notices were filed as Annexure P1. It was on this factual basis and relying upon the legal requirement, the Revenue contended that impugned show-cause is valid, legal and proper. It has to, therefore, sustain. Heard Shri S.S. Samvatsar, learned counsel for petitioner. None for the respondents, though served.

The main submission of learned counsel for the petitioner while questioning the legality and validity of impugned notice was that it did not contain any reasons, that what it contained was only the change of opinion, and that there was a full disclosure of facts. It was on these three premises, the notice was questioned. Having heard the submission of learned counsel for the petitioner and having perused the record of case, I have come to a conclusion that petition has no substance. In other words the impugned notice issued under s. 148 (Annexure P4), dt. 24th March, 1993, has to sustain.

The scope in writ jurisdiction to consider the legality and validity of such notice is limited as also well settled. The Act as it then stood does not provide for recording of reasons in the notice itself nor it provided for its communication to an assessee. What is decisive is the existence of reasons which necessitated the issuance of notice under s. 148 ibid. Admittedly, this exercise has been done by the respondent (Revenue) when the concerned AO duly recorded the reasons in the file (Annexure P1). The respondent has therefore, on affidavit disclosed the reasons in the return and also filed the copy of said reasons for the perusal of this Court. This Court cannot examine the adequacy or inadequacy of the reasons that led to issuance of notice in question.

It is however, averred that there was no regular assessment made in the case of assessee under s. 143(3) ibid. It is then averred that the assessee being the new assessee had filed their first return for the year on 8th Aug., 1989. It is inter alia alleged that in the later years when the returns for the subsequent years were taken up for scrutiny, it was noticed inter alia that lease rent are excessively paid in contravention to the provisions of s. 40A in the assessment year in question. It was alleged that taking into account these facts, a detail note recording reasons and justifying the facts, the impugned notice was issued. Perusal of R-1, i.e. reasons in my opinion do constitute a ground for issuance of notice under s. 147/148 of the Act. There are valid and legal grounds for sustaining the notice. As observed supra. It is not a case of no reasoning, nor it is a case of no disclosure of reasoning. Taking into aforesaid aspects of the case, totality of entire factual senario, and the fact that no regular assessment was made, the petition is found to be devoid of substance, it is accordingly dismissed. As a consequence, the impugned notice Annexure P4 issued under s. 148, dt. 24th March, 1993, is upheld. Since this Court had stayed the further proceedings pursuant to impugned notice, the stay order dt. 23rd April, 1993, is vacated and concerned AO is free to proceed to complete the proceedings in accordance with law.

[Citation : 249 ITR 109]