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M/S Bhagwati Prasad Mata Gulam, Suriyawan, S.R.D. Nagar v. Income Tax Officer, Bhadohi - WRIT TAX No. 1792 of 2006 [2006] RD-AH 20835 (11 December 2006)


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Court No.2

Civil Misc. Writ Petition No.1792 of 2006

M/s Bhagwati Prasad Mata Gulam, Bhadohi v.

Income Tax Officer, Bhadohi

Hon'ble R.K.Agrawal, J.

Hon'ble Vikram Nath, J.

(Delivered by R.K.Agrawal, J.)

The proceedings under Section 147 read with Section 148 of the Income Tax Act, 1961 (hereinafter referred to as "the Act") in respect of the assessment years 1999-2000 to 2001-02 were initiated by the Income Tax Officer, Bhadohi on 26/27.8.2002. He completed the assessment for those years also which, in appeal preferred by the petitioner, have been set aside by the Commissioner of Income Tax (Appeals), Varanasi on the following reasoning:-

"9.8 All considered, respectfully following the well accepted and well settled legal position, the assessment order under appeal suffers from an incurable infirmity and is, therefore, lawfully unsustainable. The same being invalid is, accordingly, cancelled and quashed.

9.9 The inherent illegal character of the assessment notwithstanding, I find that there is prima facie sufficiency in the reasons based upon which proceedings u/s 147/148 were initiated. The material provoking the AO to record his reasons for belief about escapement of taxable income appears to be fair enough. Of course, the assessment order became a casualty because of the AO's failure to conduct the assessment proceedings in accordance with law. Viewed in this perspective, even though the assessment order has been cancelled and quashed because of its finalisation us.143(3) of the I.T.Act, 1961 without taking recourse to the mandatory requirements u/s 143(2) of the I.T.Act, 1961, there would be no bar on the AO to examine the feasibility or otherwise of lawfully initiating proceedings u/s 147/148 de novo. This observation is purely advisory in nature with the intention to convey my findings about the prima facie sufficiency of the reasons recorded u/s 147 before issuance of notice u/s 148 of the I.T Act, 1961."

The order passed by the Commissioner of Income Tax (Appeals) dated 2.9.2005 insofar as the petitioner is concerned, has become final as he has not challenged the directions given by the Commissioner of Income Tax (Appeals) in any further appeal before the Tribunal. According to the petitioner, the Income Tax Officer, Bhadohi had issued notice under Section 148 for the assessment years 2000-01 to 2001-02 on 16.11.2005 which he withdrew on 24.11.2005. He again issued notices on 5.12.2005 and 9.12.2005 for the assessment years 1999-2000 to 2001-02. This time he had issued notices under Section 143(2) of the Act on 4.8.2006 for all the three assessment years to which the petitioner has filed its objections after filing the returns. The reasons have been applied for. According to the petitioner, the Income Tax Officer has not supplied the reasons so far whereas, in view of the decision in the case of Bansal (K.M.) v. Commissioner of Income Tax, (1992) 195 ITR 247 (All), after the returns are filed, the Assessing Authorities are under obligations to provide for the reasons.

We have heard Sri Shakeel Ahmad, learned counsel for the petitioner, and Sri Dhananjay Awasthi, learned counsel appearing for the respondent and have perused the averments made in the writ petition.

In view of the specific prayer for giving the reasons, as contained in the letter dated 2.9.2006, a copy of which has been filed as Annexure 7 to the writ petition, the writ petition is disposed of with a direction to the Income Tax Officer, Bhadohi to supply the reasons to the petitioner within one week from the date a certified copy of this order is filed before him.

The writ petition is disposed of with the aforesaid observation.

The office is directed to issue a certified copy of this order to the learned counsel for the parties within 48 hours on payment of usual charges.  




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