@JUDGMENTTAG-ORDER
K.S. Rathore, J.@mdashSince both these writ petitions involve similar question of facts and law, therefore, they are being decided by this common order.
2. The facts of the case of S.B.C.W. Petition No. 7473/2002 are taken as leading case. By way of this writ petition, the petitioner has challenged the impugned notice dated 28.03.2002 (Annexure-1) and the reasons for re-opening the case u/s 147 dated 30.04.2002 (Annexure-3) on the ground that the notices are against the facts available on record and law applicable and the same deserve to be quashed and set- aside. It is further challenged that the notice u/s 148 of the Income Tax Act dated 28.03.2002 is served to the petitioner without issuing any notice and providing opportunity of hearing to the petitioner.
3. The petitioner has further challenged the impugned notice on the ground that the said notice is neither speaking nor any reasons have been disclosed by the respondent and the assessment was already completed in the case twice on 30.03.2000 and 20.03.2001 after perusal of all the material available on record. The respondent has no material for re-opening the case and as per the provisions of Section 148 of the Income Tax Act and settled preposition of law, there should be new material or information before initiating proceedings u/s 148 of the Income Tax Act.
4. On the other hand, the respondent has raised preliminary objections regarding maintainability of the writ petition as the petitioner has got alternative remedy of filing appeal before the Commissioner of Income Tax (Appeals) u/s 246 of the Income Tax Act against the order passed u/s 147 of the Income Tax Act. Further if aggrieved by the order of Commissioner of Income Tax (Appeal), the petitioner may approach before the Income Tax Appellate Tribunal u/s 253 of the Income Tax Act and if any adverse order is passed by the Income Tax Appellate Tribunal, the same can be challenged u/s 260A of the Income Tax Act before this Court and without availing the alternative efficacious remedy available to the petitioner, the present writ petition has been filed which is not maintainable.
5. Learned Counsel for the respondent has further challenged the maintainability of the writ petition on the ground that the petition against the notice issued u/s 148 of the Income Tax Act is not maintainable as per the settled preposition of law as laid down by the Division Bench of this Court and the Hon''ble Apex Court as the Hon''ble Apex Court has observed that the High Court should not exercise extraordinary power vested under Articles 226 and 227 of the Constitution of India in the notice issued u/s 148 of the Income Tax Act.
6. In reply to the preliminary objections raised on behalf of the respondent, it is contended by the learned Counsel for the petitioner that the writ petition is maintainable even against the notice issued u/s 148 of the Income Tax Act and placed reliance on the judgment rendered by the Division Bench of the Madhya Pradesh High Court in the case of
7. He also placed reliance on the judgment rendered by the Division Bench of the Gujarat High Court in the case of
8. Learned Counsel appearing for the respondent in support of his submissions with regard to maintainability of the writ petition, has placed reliance on the judgment rendered by the Division Bench of this Court in the case of
The assessing authority hasjurisdiction to reopen the assessmentunder Section 147 of the Income Tax Act, 1961, by issuing notice u/s 148 of the Act after four years from the end of the relevant year in case the assessing authorityhas reason to believe that on account of omission or failure on the part ofthe assessee to file the return or on account of failure on his part to disclose fully and truly all materialfacts necessary for assessment for that particular year, income had escaped assessment. The sufficiency ofthe reasons for forming the belief isnot for the court to judge.
9. Similar view has been taken by the Division Bench of this Court in the case of
Dismissing the appeal, that sanction for notice u/s 148 of the Income Tax Act, 1961 had beengranted by the Additional Commissioner. The Additional Commissioner was the officer superiorin the hierarchy to the Joint Commissioner in the Department. Certainly, the superior officer in thehierarchy was competent to grantsanction for issuance of the notices to the assessee u/s 148. It was clear from the findings of the single judge that it could not be saidthat the notice was ex facie a nullityor totally without jurisdiction. The alternative remedy of filing of theobjections against show cause notice available to the appellant had beenavailed of. The notice could not be quashed.
10. Hon''ble the Apex Court in the case of GKN Driveshafts (India) Ltd. v. Income Tax Officer and Ors. (2003) 179 CTR 11, has held as under:
There is no justifiablereason to interfere with the order under challenge. When a notice under
Section. 148 is issued, the proper courseof action for the notice is to file return and if he so desires, to seek reasons for issuing notices. The AOis bound to furnish reasons within a reasonable time. On receipt of reasons, the noticee is entitled tofile objections to issuance of noticeand the AO is bound to dispose of thesame by passing a speaking order. Inthe instant case, as the reasons havebeen disclosed in these proceedings, the AO has to dispose of the objections, if filed, by passing a speaking order, before proceedingwith the assessment.
11. I have heard rival submissions of the respective parties and carefully perused the relevant provisions of law as well as the impugned notice issued u/s 148 of the Income Tax Act, which is under challenge in these writ petitions. I have also carefully gone through the judgments referred by the respective parties.
12. To decide the preliminary issues which have been raised by the learned Counsel for the respondent whether these writ petitions are maintainable against the notice issued u/s 148 of the Income Tax Act, as observed by the Hon''ble Apex Court in the case of GKN Driveshafts (India) Ltd. v. Income Tax Officer and Ors. (supra), referred by the learned Counsel for the respondent, that if any reason has not been assigned while issuing notice u/s 148 of the Income Tax Act, the petitioner is given liberty to raise the objection before the AO and on such eventuality, the AO has to dispose of the objections if filed by the petitioner by passing a speaking order before proceeding with the assessment.
13. In view of the ratio decided by the Hon''ble Apex Court in the case of GKN Driveshafts (India) Ltd. v. Income Tax Officer and Ors. (supra), the petitioner was given liberty to raise objection which, admittedly, has not been raised by the petitioner and filed these writ petitions.
14. Therefore, in view of the ratio decided by the Hon''ble Apex Court in the case of GKN Driveshafts (India) Ltd. v. Income Tax Officer and Ors. (supra), both these writ petitions are not maintainable as the petitioner has got alternative efficacious remedy and even the petitioner has got remedy to raise objections before the assessing authority, as held by the Hon''ble Apex Court in the aforementioned case.
15. Consequently, both the writ petitions fail being devoid of merit and the same are hereby dismissed.
16. The interim order dated 02.12.2002 granted in S.B.C.W. Petition No. 7473/2002 and dated 11.11.2002 granted in S.B.C.W. Petition No. 7474/2002 stand rejected.
17. The stay applications also stand dismissed.
