TaxTMI 
TaxTMI 
2003 (12) TMI 43
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....e then the interim order granted by this court should be vacated. He says the notice issued by the officer is not justiciable as in exercise of statutory power he has issued, because he has reason to believe that income chargeable to tax has escaped assessment for the assessment year of 1999-2000. The formation of op4Uon of the officer's reason to believe is his subjective satisfaction. Necessary permission has been obtained from the Commissioner of Income-tax. Not only is the Assessing Officer satisfied, the Joint Commissioner of Income-tax concerned is also satisfied with the reasons recorded by the Assessing Officer that the same are sufficient to issue such notice. This court should not examine the correctness, sufficiency, and adequacy of the reasons in exercise of power of judicial review under article 226 of the Constitution of India. Therefore, when all the pre-conditions for issuance of this notice under section 148 of the. Income-tax Act are found to have been fulfilled the court will certainly not interfere with this proceeding. His further contention is that the reasons should not be divulged for the interests of the Revenue. The assessee has already submitted returns ....
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....f the opinion, this can only be done on production of record or by filing affidavits. He contends further that in this case after regular assessment order was passed, on January 3, 2003 (sic), a notice of rectification dated December 24, 2002, was issued by respondent No.2 under section 154/155 of the Income-tax Act. The petitioner replied to the said notice dated December 24, 2002, and explained that there was no mistake that requires rectification under section 154 of the said Act, and it was requested to stop this proceedings. Therefore, there could be no reason for reopening when the rectification proceeding has indeed been initiated and the same is pending. He contends further that in order to cover up misuse of power by issuing notice under section 154 of the Income-tax Act the present notice under section 148 has been issued. Therefore, this cannot be enquired into and/or examined properly by this court till affidavits are filed showing this course of action is legitimate. This has been settled by the large number of decisions of the Supreme Court and High Courts. According to him, an order passed by me on December 2, 2003, is perfectly lawful one and the same is in conson....
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.... the statute and which in its turn provides for a complete code for adjudicating machinery, provided of course such action is initiated in lawful and proper exercise of jurisdiction. The learned Additional Solicitor General says that this notice once issued in exercise of jurisdiction is not justiciable and I think he is right in principle. Now the question is whether he has done so on the facts and circumstances of this case. So, the decisions cited by him in support of the proposition have to be carefully applied and the same in my view are for guidance for general application. The notice under section 148 of the Income-tax Act, 1961 (hereinafter referred to as the said Act), has to be issued only when the conditions mentioned in section 147 of the said Act are satisfied meaning thereby lawful assumption of jurisdiction of the Assessing Officer (at least in this case) will be inferred when he has reason to believe that any income chargeable to tax was escaped assessment in any assessment year. When the assessee doubted that there could be reasons for the belief of the Assessing Officer concerned, I think it is the obligation of the officer concerned to divulge the reasons and u....
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....notice discloses the belief of the Income-tax Officer that there are reasons to reopen. It appears in the judgment reported in Simplex Concrete Piles (India) Pvt. Ltd. v. Deputy CIT [2002] 255 ITR 49 (Cal), the learned single judge did not consider the earlier decision of the Supreme Court nor discuss though referred to, the judgment reported in Calcutta Discount Co. Ltd. v. ITO [1961] 41 ITR 191 and also decisions quoted above. The learned single judge has reiterated the position that once the condition mentioned in section 147 of the Act having been fulfilled then it confers jurisdiction upon the officer concerned. So, his Lordship has not laid down any new principle. This judgment is also inapplicable, because factually in that case affidavits were filed disclosing reasons. Here is a case whether this court will entertain the writ petition at this stage or not. Similarly other decisions relied on by Mr. Kapoor, the learned Additional Solicitor General, reported in Raymond Woollen Mills Ltd. v. ITO [1999] 236 ITR 34 (SC); Gurera Gas Cylinders Pvt. Ltd. v. CIT [2002] 258 ITR 170 (P&H) and ITO v. Biju Patnaik [1991] 188 ITR 247 (SC) are of no assistance at this stage. These decisi....
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....d the writ petition questioning the jurisdiction of the Assessing Officer concerned to reopen the assessment on the plea that there exists no reason and there could be no material for formation of opinion that any income of the petitioner has escaped assessment in the relevant year at the initial stage. Therefore, the question of the principle of estoppel or acquiescence did not and does not arise. Now, when the reasons have been divulged to this court and in view of established principle of law that the assessee is entitled to be communicated with the reasons, I think the following course of action in this case would meet the justice for the time being. In a fairly recent decision of the Supreme Court reported in GKN Driveshafts (India) Ltd. v. ITO [2003] 259 ITR 19; [2003] 1 SCC 72,73, the Supreme Court was pleased to direct to give the guidelines as to what should be done when the notice is issued. In paragraph 5 it has been said as follows: "However, we clarify that when a notice under section 148 of the Income-tax Act is issued, the proper course of action for the noticee is to file return and if he so desires to seek reasons for issuing notices. The Assessing Officer is bou....