2010 (3) TMI 22

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....cords on the file of the 2nd respondent in C.No.7032[1]/264/CIT-VII/2003-04 and to quash the impugned order dated 23.02.2005 and consequently direct the 1st respondent herein to issue a valid notice u/s.148 in accordance with law. ORDER 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 dated 23.02.2005 and to direct the 1st respondent to issue valid notice u/s.148  in accordance with law. 3. The learned counsel for the petitioner submitted that the petitioner has not b....

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....ged the same before this court by way of filing the above writ petition. 5. The learned counsel for the petitioner, in support of his contention, placed reliance on the following decisions:- [a]Y.NARAYANA CHETTY & ANR. Vs. INCOME TAX OFFICER & OTHERS [1959 [35] ITR 388 [SC]]; and [b]THANGAM TEXTILES Vs. INCOME TAX OFFICER [1973 [90] ITR 421 [MAD]] 6. Per contra,  the learned Standing counsel appearing for the respondents would submit that the notice contemplated u/s.148 of the Act was issued against the petitioner on 17.09.1999 and duly dispatched on 22.09.1999 as per the Despatch Register. It is contended that thereafter, a reminder letter dated 16.10.2000 was also issued to the petitioner for the return of income for the assessme....

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....ect that whether the assessment order could be passed without serving the notice u/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 u/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 u/s.148 was issued on 17.09.1999 and duly despatched on 22.09.1999 as per the Despatch Register. It is also further stated in the counter that subsequently on 16.10.2000, a reminder letter was issued calling for the return of income for the assessment....

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.... 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. INCOME TAX OFFICER reported in [1973] 90 ITR 412 [Mad] wherein the Division Bench has held in paragraph 7 which reads here under:- "7.In Narayanan Chetty Vs. ITO [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 ....