Madras H.C : the petitioner has not been served with the notice as contemplated under s. 148 of the IT Act, 1961

High Court Of Madras

Smt. S. Nachiar vs. ITO & ORS.

Section 148, 282

Asst. Year 1994-95

K.N. Basha, J.

Writ Petn. No. 29278 of 2008 & Misc. Petn. No. 1 of 2008

12th March, 2010

Counsel appeared :

R. Sivaraman, for the Petitioner : T. Ravikumar, for the Respondent

JUDGMENT

K.N. Basha, J. :

By mutual consent of both the learned counsel for the petitioner and the learned standing counsel appearing (income-tax) for the respondents, the main writ petition is taken up for final disposal.

2. The petitioner has come forward with the petition seeking for the relief of quashing the order of the 2nd respondent dt. 23rd Feb., 2005 and to direct the 1st respondent to issue valid notice under s. 148 in accordance with law. The learned counsel for the petitioner submitted that the petitioner has not been served with the notice as contemplated under s. 148 of the IT Act, 1961 (hereinafter referred to as “the Act”). It is contended that without serving such notice under s. 148 of the Act, the 1st respondent proceeded to issue a letter dt. 16th Oct., 2000 calling for the return of income for the asst. yr. 1994-95 from the petitioner herein. The learned counsel would submit that only after serving the notice under s. 148, the other procedures should be followed by the respondents as per s. 143(2) of the Act. It is further contended that the notice prescribed under s. 148 cannot be regarded as a mere procedural requirement and once, if the notice is not served on the assessee, the entire proceedings initiated for the assessment, on the basis of the invalid notice, would be illegal and void. It is also contended that the issue of notice under s. 142(1) calling for the assessee to submit his return, would not amount to a notice under s. 148 of the Act. Therefore, it is submitted that the impugned order dt. 23rd Feb., 2005 passed by the 2nd respondent is liable to be set aside.

The learned counsel for the petitioner would also contend that the provision of alternative remedy of filing an appeal can always be waived by the assessee as per s. 264 of the Act and the assessee can file a revision before the CIT seeking for the relief of setting aside the ex parte order of assessment and as the said revision was dismissed through the impugned order, the petitioner has challenged the same before this Court by way of filing the above writ petition. The learned counsel for the petitioner, in support of his contention, placed reliance on the following decisions : (a) Y. Narayana Chetty & Anr. vs. ITO & Ors. (1959) 35 ITR 388 (SC); and (b) Thangam Textiles vs. ITO (1973) 90 ITR 412 (Mad).

6. Per contra, the learned standing counsel appearing for the respondents would submit that the notice contemplated under s. 148 of the Act was issued against the petitioner on 17th Sept., 1999 and duly dispatched on 22nd Sept., 1999 as per the despatch register. It is contended that thereafter, a reminder letter dt. 16th Oct., 2000 was also issued to the petitioner for the return of income for the asst. yr. 1994-95 in response to notice under s. 148 and the said notice was also served on 20th Oct., 2000 and the acknowledgement was also available on record. Learned standing counsel would further contend that even the notice under s. 142(1) of the Act was also issued against the petitioner on 11th March, 2002 and the same was duly served on 13th Feb., 2002. Therefore, it is contended that there is no illegality or infirmity in the impugned order dt. 23rd Feb., 2005 warranting interference of this Court.

7. I have carefully considered the rival submissions made on either side and also perused the materials available on record including the impugned order.

8. The undisputed fact remains that the petitioner has suffered an ex parte order of assessment and as against the same, the petitioner has preferred a revision under s. 264 of the Act and the said revision was dismissed through the impugned order dt. 23rd Feb., 2005. However, it is stated in the counter affidavit to the effect that the petitioner was served with the notice of the 3rd respondent dt. 26th April, 2006 under s. 221 of the Act asking the petitioner to pay the arrears of tax for the asst. yr. 1994-95 and the same is available on record and in spite of the same, the petitioner has not appeared, resulting in passing an ex parte assessment order. It is also stated in the counter that it is not the fault of the respondents for necessitating the authority to pass an ex parte order.

9. The crux of the question involved in this matter is to the effect that whether the assessment order could be passed without serving the notice under s. 148 of the Act.

10. In respect of such question, it is categorically stated by the petitioner in the affidavit and also contended by the learned counsel for the petitioner that the notice contemplated under s. 148 of the Act was not served on the petitioner. On the other hand, it is stated in the counter filed by the respondents and also contended by the learned standing counsel that the notice contemplated under s. 148 was issued on 17th Sept., 1999 and duly despatched on 22nd Sept., 1999 as per the despatch register. It is also further stated in the counter that subsequently on 16th Oct.,2000, a reminder letter was issued calling for the return of income for the asst. yr. 1994-95 in response to notice under s. 148. The above said statement made in counter makes it crystal clear that though notice said to have been issued under s. 148 of the Act, the fact remains that the said notice was not served on the petitioner. Therefore, this Court has no hesitation to hold that the respondents have not complied with the requirements contemplated under s. 148 by serving a notice on the assessee, viz., the petitioner herein. It is also pertinent to point out that though it is claimed by the respondents that subsequently a reminder letter dt. 16th Oct., 2000 was issued to the petitioner and the same was also duly served on the petitioner on 20th Oct., 2000, the said reminder letter is only for calling the petitioner to submit the return of income and by no stretch of imagination the said letter could be construed to be a notice under s. 148 of the Act.

11. The Hon’ble apex Court has held in para 4 of the judgment in Y. Narayana Chetty & Anr. vs. ITO & Ors. (supra) that : “4……… The notice prescribed by s. 34 cannot be regarded as a mere procedural requirement; it is only if the said notice is served on the assessee as required that the ITO would be justified in taking proceedings against him. If no notice is issued or if the notice issued is shown to be invalid then the validity of the proceedings taken by the ITO without a notice or in pursuance of an invalid notice would be illegal and void. That is the view taken by the Bombay and Calcutta High Courts in CIT vs. Ramsukh Motilal (1955) 27 ITR 54 (Bom) and R.K. Das & Co. vs. CIT (1956) 30 ITR 439 (Cal) and we think that that view is right.”

12. The above said decision was also subsequently followed by a Division Bench of this Court in Thangam Textiles vs. ITO (supra) wherein the Division Bench has held in para 7 which reads here under : “7. In Y. Narayana Chetty & Anr. vs. ITO & Ors. (1959) 35 ITR 388 (SC), the Supreme Court held that the service of requisite notice on the assessee, is a condition precedent to the validity of any reassessment made under s. 34 of the IT Act, 1922 (which corresponds to s. 147 of the IT Act, 1961), and if a valid notice and consequent orders of reassessment passed by him would be void and inoperative”. Sec. 34 of the Old Act referred in the decision cited supra, is equivalent to s. 148 of the Act, 1961. The principles laid down by the Hon’ble apex Court as well as this Court, are squarely applicable to the facts of the instant case as in this case also, the notice contemplated under s. 148 of the Act was not served on the petitioner. As a result, the entire proceedings culminating into the present impugned order dt. 23rd Feb., 2005 passed by the 1st respondent is vitiated. The learned standing counsel for the respondents has also put forward the contention to the effect that the petitioner is having the alternative remedy of filing an appeal as per s. 246 of the Act to the CIT(A), against the order of assessment and without exhausting such alternative remedy, the petitioner is not entitled to maintain a writ petition before this Court. I am not able to countenance the said contention of the learned standing counsel for the respondents for the simple reason that the assessee, viz., the petitioner can very well waive the right to file an appeal as per the provision under s. 264 by preferring a revision. It is seen that accordingly, the petitioner waived his right to file an appeal and filed a revision as per s. 264 and the said revision was dismissed through the impugned order dt. 23rd Feb., 2005 passed by the 2nd respondent. For the aforesaid reasons, this Court is constrained to set aside the impugned order dt. 23rd Feb., 2005 passed by the 2nd respondent in his proceedings C.No. 7032(1)/264/CIT-VII/2003-04 and remand the matter to the first respondent to proceed with the assessment for the period 199495 by issuing notice under s.148 of the Act. Accordingly, the writ petition is allowed. No costs. It is made clear that the consumption of time taken during the pendancy of this proceedings by granting the relief of the stay, would not stand in the way of limitation. Consequently connected miscellaneous petition is closed.

[Citation : 326 ITR 77]