AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2004 (1) TMI 53
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....e Income-tax Act, 1961" has been mentioned. This notice was issued on October 21, 2002. On receipt of this notice, the assessee/petitioner objected to the same taking a legal point that the notice is bad and invalid as it does not mention clause of the said sub-section, namely, whether clause (i) or clause (ii). As such this notice should be withdrawn. The Assessing Officer replied to the objection of the petitioner and clarified by a letter dated November 17, 2002, contending that the aforesaid notice was issued or intended to be issued under section 143(2), clause (ii). This clarificatory notice came after slightly over twelve months from the end of the month in which the return was furnished. On the aforesaid factual aspect, Mr. R. Bharadwaj, the learned advocate, led by Mr. Mihirlal Bhattacharyya, learned senior counsel, contends that the said notice is bad in law as such this was clarified by subsequent notice as above. However, this clarification came at a certain point of time when the time limit for issuance of valid and lawful notice has expired as by the proviso to the said section the time limit is mentioned as twelve months, for issuance of this notice and on the expiry....
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....n this case the notice, which is sought to be impugned, has not been suppressed and it has been placed. His client's act and conduct while participating in the proceeding, subsequent thereto do not constitute material fact to decide this issue. The issue is upon reading the two notices, whether the same are in consonance with the provision of law or not. According to him submitting to the jurisdiction of the officer is not the material fact or for that matter suppression thereof would not be a factor to dismiss this application in limine. Mr. P.K. Mullick, learned senior counsel appearing with Mr. R. Sinha, advocate, submits that the provision of section 143 of the said Act at the time of filing of returns, for issuance of notice, is almost as the same it is now, notwithstanding the amendment. If the provisions of the previous section 143(2) of the Act and clause (ii) of the present section 143(2) are read in juxtaposition then it will appear there is no difference, rather the provision of clause (i) is a new insertion by way of substitution by the Finance Act, 2002, with effect from June 1, 2002. He submits that when a return was filed, the present section 143(2) with clause (i....
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....g on the adjudication of this matter as the dispute raised with regard to the notice, relates to mere irregularity for the appropriate clause having not been mentioned. It is not a type of objection, which cannot be waived. By his act and conduct this objection has been waived. Therefore, the petitioner is estopped from raising the dispute as to illegality of the impugned notice. This point is very essential and material for adjudication of this dispute. Mr. Mullick then contends that in a case of this nature this court will not exercise writ jurisdiction because there is no affectation of the right of the petitioner in this matter. If the assessment is allowed to be done with this impugned notice and the order if passed consequently, can be challenged subsequently before the appellate authority or for that matter before any other appropriate forum. Therefore, the petitioner is not left remediless. He relies on the decision of the Supreme Court reported in GKN Driveshafts (India) Ltd. v. ITO [2003] 259 ITR 19. Having considered the respective contentions of learned counsel and examined this matter the point raised herein is whether the impugned notice is bad in law or not. Fr....
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.... or to produce, or cause to be produced there, any evidence on which the assessee may rely in support of the return." The contention of Mr. Bharadwaj is that as twelve months have already expired, the assessing authority has no jurisdiction to issue either any fresh notice or to clarify it. I am unable to accept this submission. Twelve months expired on October 31, 2002, computing from October 31, 2001, being the end of the month in which the return was filed. This proviso puts a time limit to issue notice which indeed was done, no embargo in the Act can be found to make correction or clarification of the notice. The impugned notice is not bad in law for the specific clause having not been mentioned. Particularly, when the text thereof substantially makes the intention clear as to why and for what purpose the notice was served. I have quoted the text of the notice and which, it appears, without any mistake makes the intention clear for general purpose, not for specific purpose as required under clause (i). The effect of the clarification of any document is always retrospective, therefore, this would relate back to the date of the notice. The clarificatory notice has got no independ....
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....nduct subsequent to the issuance of notice and immediately before filing of the writ petition or on the date of filing is relevant and/or material. It is a well-established principle of law in the public law filed as rightly contended by Mr. Mullick that clear and fair disclosure of the act and conduct of the litigant is a paramount condition to invoke extraordinary jurisdiction. A litigant must disclose rather place all his cards either in his favour or against before the court relating to or concerning with every detail of the matter up to the date of filing as the writ court ordinarily does not have any occasion to call for witness action. Unless all the facts and circumstances are placed before the writ court, it finds it difficult to adjudicate the matter and that is why the disclosure of all the facts, having relevancy to the cause of action and the reliefs sought for is necessary. As I have already observed that the objection raised by the petitioner is a waivable objection, the basis of this objection is non-mentioning of clause (i). The object of mentioning of this clause of the said section is to make the noticee understand. If by the tenor and text of the notice makes....