TaxTMI 
TaxTMI 
1972 (3) TMI 20
X X X X Extracts X X X X
X X X X Extracts X X X X
....bout the said material. The petitioner, therefore, submits that the purported action of the respondent No. 1 to assess the salary income of the petitioner on " due basis " and not on " actual receipt basis " is amounting to and/or will amount to a mere change of opinion and, as such, the respondent No. 1 had no competence, jurisdiction or authority to initiate the purported reassessment proceeding under section 148 of the Act. The petitioner also contended that the purported notice under section 148 of the Act dated 30th March, 1971, which was served upon the petitioner on the 1st April, 1971, as alleged by him, is barred by limitation and that the said notice for reassessment for the assessment year 1962-63, was issued in violation of section 149 of the Act. The petitioner also contended that the purported action of the respondent No. 1 in issuing the said notice dated 30th March, 1971, under section 148 of the said Act which was received by the petitioner on the 1st April, 1971, is illegal, invalid and inoperative, inasmuch as the said notice has been issued without obtaining the necessary sanction of either the Commissioner of Income-tax or that of the Central Board of Dir....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he petitioner inasmuch as the respondent No. 2 in assessing the petitioner for the assessment year 1962-63 adopted the ' receipt basis '. " The respondent also states that the said notice dated 30th March, 1971, was served on the petitioner on the same day, i.e., on the 30th March, 1971. The petitioner, however, in the acknowledgement of the said notice according to the respondent put the date of receipt thereof as 29th March, by mistake. Further, the respondent No. 1 also states in his affidavit at the end of paragraph 19 : " I say that the said notice was served on the petitioner on March 30, 1971, but the petitioner wrongly put the date of receipt of the notice on the acknowledgement slip thereof as 29th March. I further say that necessary sanction of the competent authority was duly obtained before issuing the said notice but through inadvertence the said fact was not stated and/ or disclosed in the said notice." These are shortly the allegations and/or counter-allegations of the parties before me. Though many points were taken in the petition Mr. Sanjoy Bhattacharya, advocate, appearing for the petitioner, mainly took the point that the notice of reopening the asse....
X X X X Extracts X X X X
X X X X Extracts X X X X
....if the notice that was served by hand is taken to be correct service then of course it will not be beyond 8 years. I asked the parties to produce both these documents-the original envelope with the notices which reached the petitioner by registered post and also the acknowledgement slip which was produced by Mr. Banerjee. Mr. Bhattacharya further argued that in any event in the present case the requisite period of limitation is not 8 years under section 147(a), but 4 years under section 147(b). Section 149(1) says : (1) No notice under section 148 shall be issued, (a) in cases falling under clause (a) of section 147 (i) for the relevant assessment year, if eight years have elapsed from the end of that year, unless the case falls under sub-clause (ii);...... (b) in cases falling under clause (b) of section 147, at any time after the expiry of four years from the end of the relevant assessment year. (2) The provisions of sub-section (1) as to the issue of notice shall be subject to the provisions of section 151." Mr. Bhattacharya drew my attention to the order of the Income-tax Officer for the assessment year 1962-63, which says : " The assessee has shown salary inc....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... question of fact and also drew my attention to several authorities. Mr. Banerjee refers to a case, Chhugamal Rajpal v. S. P. Chaliha. But in that case the Supreme Court held that the notice under section 147 was invalid and I do not think that that case at all supports Mr. Banerjee. Another case which was referred to by him and also cited by Mr. Bhattacharya is the case of Panama Pyivate Ltd. v. Income-tax Officer, Calcutta Mr. Banerjee strongly relies on a recent Supreme Court case, Commissioner of Income-tax v. Ramendra Nath Ghosh , where their Lordships affirming the decision of the High Court, on the facts, held that : "The service of the notice was not in accordance with the law and therefore it could not be said that the assessees had been given a proper opportunity to put forward their case as required under section 33B of the Income-tax Act" But in the said judgment their Lordships also said : "The question whether the assessees had been served in accordance with the law or not is essentially a question of fact. The Income-tax Act provides for an appeal against the order (under appeal) under section 33B. Normally, the assessee should have gone up on appeal agai....
X X X X Extracts X X X X
X X X X Extracts X X X X
....information which comes into his possession subsequent to the making of the original assessment order, and that information must lead to his belief that income chargeable to tax has escaped assessment, has been under-assessed or assessed at too low a rate, or has been made the subject of excessive relief. " In another case, Commissioner of Income-tax v. Burlop Dealers , the Supreme Court has decided that : " Where on the evidence and the materials produced during the original assessment proceedings the Income-tax Officer could have reached a conclusion other than the one which he has reached, a proceeding under section 34(1)(a) of the Indian Income-tax Act, 1922, will not lie merely on the ground that the Income-tax Officer has raised an inference which he may later regard as erroneous." In the same judgment it is stated : " We are of the view that under section 34(1)(a) if the assessee has disclosed primary facts relevant to the assessment, he is under no obligation to instruct the Income-tax Officer about the inference which the Income-tax Officer may raise from those facts. The terms of the Explanation to section 34(1) also do not impose a more onerous obligation. Me....