TaxTMI 
TaxTMI 
2009 (7) TMI 95
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....proceedings has been rightly initiated. The petitioner also challenges the notice dated January 9, 2009 (annexure 5), issued by respondent No. 3, to produce documents/papers stated therein. 3. A brief statement of facts essential for disposal of this writ petition may be indicated. The petitioner is a company incorporated under the Companies Act, 1956, with its registered office in Patna. It had submitted its return for the assessment year 2000-01, under section 139 of the Act, which was accepted in terms of section 143(1) of the Act. Neither steps were taken for scrutiny in terms of section 143(2) of the Act nor appeal was filed. 4. Simultaneously, Sanjiv Kumar, one of the directors of the petitioner company, had also submitted his own returns for the block period/assessment year 1998-99 to 2004-05 (up to date of search on May 8, 2003). Aggrieved by the assessment order, Sanjiv Kumar had filed Appeal No.168/A-1/05-06, which was disposed of by the Commissioner of Income-tax (Appeals)-I, Patna, by his order dated October 11, 2006 (annexure 2), whereby certain additions made by the learned Assessing Officer were deleted and were directed to be considered with respect to income of t....
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....proceedings have been validly initiated to give effect to the appellate order of the Commissioner of Income-tax (Appeals)-I, Patna. 6. We must at the outset note that we had, at the inception, given option to the learned counsel for the petitioner to withdraw the writ petition and appear before the learned Assessing Officer so that the matter is disposed of on the merits. It would, therefore, be open to the petitioner to raise the preliminary issues raised in the present proceedings before the superior authorities/courts, if the need arises to challenge the order of the learned assessing authority. Learned counsel for the petitioner has preferred to proceed with the present writ petitions. 7. While assailing the validity of the impugned order, learned counsel for the petitioner has submitted that in view of the provisions of section 150(1) of the Act, the observations in the order of the learned appellate authority does not amount to a finding or direction so as to justify initiation of a proceeding under section 148 of the Act In other words, in his submission, there has to be conclusive finding. He also submitted that initiation of proceeding is hit by the bar of limitation eng....
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....the present case is at the notice stage. 9. Learned counsel for the petitioner has in reply submitted that the writ petition is maintainable. He relied on the judgment of the Supreme Court in Whirlpool Corporation v. Registrar of Trade Marks [1998] 8 SCC 1. 10. We have perused the materials on record and considered the submissions of learned counsel for the parties. It appears to us that the power to reopen a concluded assessment order under the Act has been made available to the authorities under certain circumstances. The returns filed by an assessee can be approved by the Assessing Officer in terms of section 143 of the Act. It is open to the Assessing Officer to subject the same to a detailed scrutiny in terms of section 143(2) of the Act. Section 148 vests the authorities with the power to issue notice where income has escaped assessment. Exercise of powers is hedged with certain conditions. It can be done within the period of limitation prescribed under section 149 of the Act. The concerned authority should have reasons to believe that there is income escaping assessment which can justify reopening of the proceedings. Section 151 provides that it cannot be reopened unless t....
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....e Assistant Commissioner, vide his order dated August 31, 1970, in an appeal against the original assessment. Section 149(2) refers to section 151. Section 151, therefore, cannot be read in isolation or de hors section 149. Section 149(1) prescribed the time limit for a notice under section 148. Sub-section (2) imposes a further restriction on the Income-tax Officer so that before issuing a notice, compliance with the conditions laid down under section 151 is also necessary. If a notice under section 148 has to be issued within the time limit prescribed under section 149(1) sanction has to be obtained from the Board or the Commissioner in accordance with sub-section (1) or (2) of section 151 of the Act, as the case may be. Section 150(1) of the Act is an exception to the provisions of section 149 because it starts with a non obstante clause 'notwithstanding anything contained in section 149. Thus, when a notice under section 148 is issued at any time for the purposes for making an assessment or reassessment in consequence of or to give effect to any finding or direction contained in an appellate order, the provisions of section 149 as a whole will not be applicable. Sub-section (2....