TaxTMI 
TaxTMI 
2006 (4) TMI 84
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....ly, filed under article 226 of the Constitution of India had challenged the validity of the separate notice dated March 15, 2001, issued under section 148 of the Income-tax Act, 1961 (hereinafter referred to as "the Act"), for the assessment year 1995-96 on the ground that the said notice is absolutely illegal, arbitrary and had been issued only on account of change of opinion and there was no material on the basis of which a sum of Rs. 14 lakh and Rs. 19.60 lakhs, respectively, can be said to be the income of the applicants on the basis of which an opinion can be formed about the escaped assessment. The writ petition was heard along with two other writ petitions involving similar issues and was dismissed vide a common judgment and order da....
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....sel seeks permission to withdraw these petitions. Prayer is granted. The special leave petitions are dismissed as withdrawn." Thereafter, both the applicants had filed separate applications seeking review of the judgment and order dated December 3, 2004 along with an application seeking condonation of delay in filing the review application. The review applications have been filed on the following grounds: (i) Section 151(2) of the Act mandates that no notice shall be issued under section 148 of the Act by the Assessing Officer who is below the rank of a Joint Commissioner after the expiry of four years from the end of the relevant assessment year unless the Joint Commissioner is satisfied on the reasons recorded by the said Assessing ....
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.... petitioner to raise this plea by means of a review application. We have heard Sri V.B. Upadhaya, learned senior counsel, assisted by Sri Rakesh Ranjan Agrawal, advocate on behalf of the applicant, and Sri Shamboo Chopra, learned standing counsel appearing on behalf of the Revenue. Sri Upadhaya, learned senior counsel, submitted that the plea regarding sanction for issue of notice not having been given by the Joint Commissioner, was specifically raised by him in the course of the arguments, which plea had not been dealt with by this court while dismissing the writ petition vide judgment and order dated December 3, 2004, According to him, sanction in both the cases has been given by the Additional Commissioner of Income-tax and, theref....
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....rned senior counsel appearing for the petitioner did not refer to the averments made in the rejoinder affidavit which was filed before the court on October 29, 2004, and the arguments were heard on November 5, 2004. It may be mentioned here that in paragraph 3 of the rejoinder affidavit filed by Ajay Kumar Maheshwari in both the writ petitions identical averments have been made as follows: "3. That before giving parawise reply to the counter affidavit the deponent craves the leave of this hon'ble court to place certain more facts, which are essential for just appreciation of the controversy involved in the instant case. (a) That it is submitted that the notice under section 148 of the Income-tax Act is illegal as the Income-tax Office....
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....section 148 of the Income-tax Act, which is contrary to the proviso to section 151(1) of the Act, as such the proceedings for reassessment are illegal and liable to be quashed." It may also be mentioned here that the aforesaid plea regarding non-compliance with the provisions of section 151(2) of the Act and the sanction not being given by the Joint Commissioner was taken for the first time in the rejoinder affidavit which was filed about a week before the arguments were heard (rejoinder affidavit having been filed on October 29, 2004, and the arguments having been heard on November 5, 2004) there was no occasion or opportunity to the Revenue to meet the new plea which was taken for the first time in the rejoinder affidavit. Thus, the ap....