High Court Of Madhya Pradesh : Indore Bench
Mangilal vs. ITO & Anr.
Section 147, 148
Asst. Year 1993-94, 1997-98 to 2000-01
A.M. Sapre & S.K. Seth, JJ.
Writ Petn. No. 97 of 2003
13th October, 2009
Counsel Appeared :
P.M. Choudhary, for the Petitioner : R.L. Jain with Ms. Veena Mandlik, for the Respondents
JUDGMENT
A.M. SAPRE, J. :
By filing this writ under Art. 226/227 of Constitution of India, the petitioner (assessee) seeks to challenge the notices issued under s. 147/148 of IT Act by the AO (R-1) dt. 29th May, 2001 collectively marked as (Annexs. P6 to P-11). The impugned notices relate to asst. yrs. 1993-94, 1997-98, 1998-99, 1999-2000 and 2000-01. So the question that arises for consideration in this writ petition filed by assessee is whether AO was justified in issuing the impugned notices to petitioner by taking recourse to the provisions of s. 147/148 of IT Act in relation to assessment years in question ? According to petitioner, on facts pleaded in the writ and keeping in view the background of the case relating to assessee and in particular his assessment as an individual, the impugned notices are bad in law and hence, deserve to be quashed whereas according to IT Department, the notices issued are legal and proper having been issued in conformity with the factual and legal requirement of twin sections. (147/148). It is a settled principle of law that jurisdiction of Writ Court under Art. 226/227 of Constitution of India while examining the legality and correctness of notices issued under any law (as in this case IT Act) is confined to only jurisdictional issues. In other words, the Writ Court cannot go into factual aspects of the case for deciding the legality of the impugned notices like an appellate Court or as an AO unless it is found to be perverse to its extreme. Perusal of impugned notices (Annexs. P-6 to P-11) would go to show that they are issued in the name of “M/s Ram Bharose Land & Finance Co. (AOP)”. Along with notice, the reasons as to why need arose to issue impugned notices are enclosed as Annex. P-12. Submission of learned counsel for the petitioner was that since the issue regarding the status of the assessee as to in whose hands the particular income should be taxed is sub judice in appeal before the Tribunal in the case of Mangilal Agrawal (Indl.) and hence there was no basis for issuing the impugned notices.
We find no merit in this submission for quashing the notices. In such situation, if it really exists then the Department should proceed to make assessment pursuant to impugned notices on “protective basis”. Depending upon the outcome of the decision that may be rendered, which has bearing over the issue in question, the authorities are always free to pass appropriate orders as is permissible under the Act. Needless to observe, this course, if required and occasion so arises, should be resorted to by the Revenue in this case. Learned counsel for the petitioner placing reliance on several authorities such as Aruppukottai Chandra Bus Lines vs. CIT (1973) 87 ITR 154 (Mad), ITO vs. Lakhmani Mewal Das 1976 CTR (SC) 220 : (1976) 103 ITR 437 (SC), Ganga Saran & Sons (P) Ltd. vs. ITO (1981) 22 CTR (SC) 112 : (1981) 130 ITR 1 (SC), CIT vs. K. Adinarayana Murty (1967) 65
ITR 607 (SC), Abdul Sattar M. Mokashi vs. CIT (1988) 73 CTR (Kar) 72 : (1988) 174 ITR 368 (Kar), CIT vs. Ashok Kumar Bharti & Vijay Kumar Goel (2005) 198 CTR (All) 260 : (2005) 149 Taxman 247 (All) vehemently argued that impugned notices are without jurisdiction. According to him they are issued against wrong person etc. Having examined the notices and the reasons accompanying them, we cannot accept the submission pressed into service. In our view, keeping in view the reasons, the AO had the jurisdiction to issue the impugned notices. Since, we have granted liberty to make the protective assessment pursuant to issuance of impugned notices in relation to assessment years in question, we do not wish to burden our conclusions by giving detailed reasons as it would cause prejudice to either parties while proceeding to make assessment and deciding the appeal which is pending before Tribunal. It is also for the reason that Writ Court cannot probe in such matters on facts. In view of foregoing discussion, we find no merit in this writ. It is, accordingly, dismissed. As a consequence, all interim orders are recalled. The respondent i.e., AO is directed to proceed to make assessment as observed supra within 6 months as an outer limit from the date of this order in accordance with law. No costs.
[Citation : 323 ITR 507]
