High Court Of Madhya Pradesh : Indore Bench
Ramballabh Gupta vs. Assistant Commissioner Of Income Tax & Ors.
Sections 147, 148, 153A
Asst. Year 1997-98
A.M. Sapre, J.
Writ Petn. Nos. 403, 405, 406, 417 to 421, 461, 462 & 466 to 468 of 2005
17th August, 2005
Counsel Appeared
G.M. Chafekar with D.S. Kale, for the Petitioner : R.L. Jain with Ku. V. Mandlik, for the Respondents
ORDER
A.M. Sapre, J. :
The decision rendered in this writ shall also govern disposal of other connected writ petitions being Writ Petn. Nos. 405, 406, 417, 418, 419, 420, 421, 461, 462, 466, 467 and 468 of 2005, as in all these writs common question of fact and law is involved.
By filing this writ under Arts. 226/227 of the Constitution of India, the petitioner—an assessee under the IT Act seeks to challenge a notice, dt. 24th March, 2004 (Annex. P-2), issued by an AO (respondent No. 1) under s. 148 of IT Act to the petitioner for making reassessment of the asst. yr. 1997-98.
In the opinion of AO, he has a reason to believe that income of petitioner (assessee) chargeable to tax for the asst. yr. 1997-98 has escaped assessment within the meaning of s. 148 ibid and hence, impugned notice is issued and served on the petitioner. In support, on being asked by the petitioner, the AO has supplied the reasons (Annex. P-6).
4. The challenge to impugned notice is made essentially on the ground inter alia, that the same is issued in contravention of s. 153A of the Act and hence, could not have been issued for the year in question i.e., 1997-98. In other words, what is contended on behalf of petitioner is that since the impugned notice is founded on raid conducted in petitioner’s premises on 8th Oct., 2003 in accordance with the provisions of s. 132 ibid, the notice for reassessment could be issued and confined to six assessment years as provided in s. 153A(a) of the Act. It is contended that six years for reopening of assessments in the case of petitioner would be upto asst. yr. 1998-99 and hence, notice issued under s. 148 for the asst. yr. 1997-98 is bad being beyond the six year period prescribed under s. 153A ibid. It is further contended that in a case of raid, the reassessment can only be made for previous six years as per requirement of s. 153A ibid and in cases of reassessment of raid, s. 148 of the Act has no application by virtue of overriding effect contained in s. 153A ibid. It is on this basis, the impugned notice of reassessment issued under s. 148 of the Act for the year in question, i.e., 1997-98 is challenged in this writ at the threshold.
On notice being issued to the respondents, a return is filed justifying issuance of notice under s. 148 of the Act. Heard Shri G.M. Chafekar, learned senior counsel, with Shri D.S. Kale, learned counsel for the petitioner, and Shri R.L. Jain, learned senior counsel, with Ku. V. Mandlik, learned counsel for respondents.
Learned counsel for the petitioner in his submission reiterated the aforementioned contentions and urged that impugned notice being totally without jurisdiction is liable to be set aside. Placing reliance on decisions rendered in the cases reported in 2005 (2) SCC 145 (para 34), 1991 (Supp) 1 SCC 81 (para 11/12) and 1991 (1) SCC 705 (para 709) and on a passage from the book Interpretation of Statute by G.P. Singh (92 Edn., p. 220) learned counsel contended that on true interpretation of the expression “notwithstanding anything contained in ss. 139, 147, 148, 149, 151, 153” employed in s. 153A of the Act, the AO had no jurisdiction to issue notice of reassessment for the asst. yr. 1997-98 by taking recourse to provisions of s. 148 ibid. In reply, learned counsel for the Revenue supported the issuance of impugned notice.
Having heard learned counsel for the parties and having perused record of the case, I find no merit in these writs. As a consequence, the writ is liable to be dismissed.
In my considered opinion, the AO was justified in issuing notice of reassessment under s. 148 of the Act for the asst. yr. 1997-98. In a case of this nature, what is required to be seen is, whether notice issued under s. 148 satisfies the requirement contained in s. 148 or not. In other words, in order to decide the legality and validity of notice issued under s. 148 ibid, it is necessary to see as to whether condition precedent provided in s. 148 ibid are satisfied or not. Once the conditions prescribed under s. 148 ibid are found present in the notice issued then, in that event, the notice has to be upheld being issued in conformity with the requirement of s. 148 ibid.
In my opinion, while deciding the legality of notice issued under s. 148, it is not necessary to look to the provisions of s. 153A ibid because both sections operate in different field and sphere. Admittedly, the assessment year in question i.e., 1997-98 does not fall within six years as per requirement of s. 153A ibid and hence, no action can be taken for making reassessment under s. 153A ibid in respect of asst. yr. 1997-98. Had it been so, then the question might have arisen as to whether provisions of s. 148 can be resorted to by AO in respect of those six years whose reassessment is to be made by issuing notice under s. 153A ibid or vice versa namely—whether notice under s. 153A could be issued in respect of asst. yr. 1997-98.
In other words, the AO may not have jurisdiction to issue notice under s. 148 of the Act in respect of those six assessment years which fall within the exclusive jurisdiction of s. 153A ibid. Such is not the case here. As observed supra, admittedly, the AO has issued notice of reassessment under s. 153A in respect of six assessment years i.e., 2003-04 to 1998-99 whereas he (AO) has issued impugned notice of reassessment for the asst. yr. 1997-98 under s. 148 which is subject-matter of this writ.
I was not impressed by the submission of learned counsel for the petitioner when he strenuously urged that in cases of search, s. 148 has no application and secondly, no order for reassessment can be passed beyond six years as provided in s. 153A ibid.
As I have observed supra, s. 148 being an independent section, powers exercised by AO cannot be curtailed if the impugned notice otherwise satisfies the requirement of s. 148 ibid. In my opinion, the only fetter put on the powers of AO in taking recourse to s. 148 is that it cannot be issued in relation to those six assessment years which are defined in s. 153A ibid. This fetter is due to use of non obstante clause in s. 153A ibid. In all other cases and for all other assessment years, s. 148 can always be resorted to subject of course to condition that it must satisfy the requirement specified in s. 148 ibid.
In view of aforesaid discussion, I need not elaborately deal with the case law cited by the learned counsel for the petitioner which deals with interpretation of word ‘notwithstanding.’
It is not the case of petitioner that the impugned notice does not satisfy the requirement of s. 148 ibid. On the other hand, it clearly appears that first notice under s. 148 could be issued for the asst. yr. 1997-98 being well within time. Secondly, the AO was empowered and had an authority to issue such notice. Thirdly, notice contains reasons as required under s. 148 and which are supplied to the petitioner and lastly on the strength of material collected in the raid conducted on 8th Oct., 2003 in the premises of petitioner a formation of belief for escape assessment could validly be formed for reopening of assessment made for the year 1997-98. Indeed as observed supra, the petitioner did not challenge the notice on any of these grounds which alone could be made basis to challenge the impugned notice it being issued under s. 148 ibid and hence, there is no difficulty in upholding the impugned notice which is rightly issued in conformity with the requirement of s. 148 ibid.
In view of aforesaid discussion, I do not find any merit in the writ. It is accordingly, dismissed. As a consequence, all interim orders are vacated. No costs.
[Citation : 288 ITR 347]
