TaxTMI 
TaxTMI 
2004 (9) TMI 84
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....grieved with the order passed by the Commissioner of Income-tax (Appeals) in an appeal filed by the assessee against the order of reassessment for the assessment year 1988-89 dated November 30, 1993. The appeal of the assessee was allowed and that of the Revenue was dismissed by the Tribunal on threefold grounds. Firstly, that prior to the amendment of section 147 with effect from April 1, 1989, it was required under section 148 that the Assessing Officer gives to the assessee a notice for filing a return of not less than 30 days whereas after the amendment, it was required that the assessee should be given a notice to file a return within 30 days. The Income-tax Tribunal found distinction between the expression "within 30 days" and "not....
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....purported to have been recorded on September 30, 1991 and notices have been issued on October 14, 1991. Learned counsel for the Revenue has urged as was urged before the Tribunal that there may be some mistake in writing the dates, and therefore, no exception can be made out from some clerical error. According to him, the order dated September 13, 1991, may have been made on October 30, 1991. We have perused the record of the Assessing Officer containing the recording of reasons and are satisfied that the third point alone is sufficient to uphold the order of the Tribunal. The note-sheet recording reasons for the assessment year 1988-89 reads as under: "September 30, 1991. 'Search and seizure was conducted under section 132 of Inco....
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....ed October 14, 1991, and served on October 29, 1991 and makes the initiation of proceedings prior to recording of reasons. Since the satisfaction of the Assessing Officer for holding belief that income has escaped assessment to tax is a condition precedent before assuming jurisdiction, the requirement of recording of reasons before issuance of notice under section 148 is an essential safeguard to the taxpayer against illegal and unauthorized assumption of jurisdiction without such satisfaction. When the validity of the notice is challenged on the ground of want of jurisdiction, the existence of the condition precedent has to be proved by the Assessing Officer. His satisfaction about the escapement of income from assessment to tax before ....
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....ommissioner is satisfied on such reasons that it is a fit case for the issue of such notice. Section 34 of the Act of 1922 was the provision corresponding to section 147/148 of the Act of 1961. The notices were issued on August 8, 1948, in which reasons had not been recorded before issuing such notices by taking into account the amended provision which had been given retrospective effect, the court said: "It is to be noticed that the notices were all issued on August 8, 1948, when on the statute book must be deemed to be existing an enactment enjoining a duty upon the Income-tax Officer to obtain prior approval of the Commissioner, and unless that approval was obtained, the notices could not be issued. The notices were, thus, invalid." ....
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....IT [1978] 113 ITR 22 (Guj); (2) CIT v. Thakurlal [1981] 132 ITR 398 (MP); (3) S.P. Divekar and A.P. Divekar v. CIT [1986] 157 ITR 629 (Bom); (4) CIT v. Sukh Lal Ice Cold Storage Co. [1992] 196 ITR 562 (All); and (5) CIT v. Kerala State Cashew Development Corporation [1992] 198 ITR 520 (Ker). In Chhugamal Rajpal v. S.P. Chaliha [1971] 79 ITR 603, the apex court was faced with a case where no reasons as required to be recorded by the Assessing Officer before issuance were produced in response to the notice. Instead, the report submitted to the Commissioner for seeking his approval was submitted. The court found that the Income-tax Officer did not set out any reason for coming to the conclusion that this is a fit case to issue n....