JUDGMENT
B. Bhattacharya, J.
1. By this writ petition, the petitioner, an assessee under the Indian Income Tax Act, 1961 has challenged four notices, two dated 11th February, 1983 and the other two dated 29th March 1983, all issued under Section 148 of the said Act.
2. Initially, the first two notices dated 11th February 1983 under Section 148 of the Act were issued for the assessment year 1974-1975 and 1975-1976 respectively, on the ground that the Income Tax Officer concerned had reason to believe that the income of the petitioner for the aforesaid periods escaped assessment within the meaning of Section 147 of the Act. In the last paragraph of those two notices, although it was written that those notices were being issued after obtaining necessary satisfaction of the Commissioner of Income Tax/Central Board of Revenue but thereafter the said paragraph was deleted.
3. There is no dispute that pursuant to the aforesaid notice dated 1lth February 1983, the petitioner had filed returns for those two years. Subsequently, the Income Tax Office concerned issued fresh notices dated 29th March 1983 for those two assessment years and in paragraph 2 of those notices, it was specifically stated that those were issued after obtaining necessary satisfaction of the Commissioner of Income Tax/ Central Board of Revenue.
4. Dr. Pal, the learned advocate appearing on behalf of the petitioner has taken a pure question of law in support of this writ application.
5. Dr. Pal first contends that the first two notices dated 11th February 1983 should be declared invalid, in view of the fact that without taking necessary satisfaction of the Commissioner of Income Tax/Central Board of Revenue, the Income Tax Officer issued such notice for reopening an assessment after expiry of more than four years as required under the law.
6. As regards the other two notices dated 29 March 1983, Dr. Pal contends that pursuant to the earlier invalid notices dated 11th February 1983, the petitioner having already filed return, there was no scope of giving further notices under Section 148 of the Act when no assessment had been made on the basis of subsequent returns filed by the petitioner, in compliance with the earlier notices dated 11th February, 1983. In support of such contention, Dr. Pal relies upon a Supreme Court decision in the case of Commissioner of Income Tax, Madras v. S. Raman Chettiar, reported in 55 ITR 630.
7. This application is opposed by the Income Tax authority and Mr. Mitra, the learned counsel appearing on behalf of the Revenue has opposed the aforesaid two contentions raised by Dr. Pal.
8. Mr. Mitra contends that the first two notices dated 11th February 1983 were patently illegal, inasmuch as, by those notices the Income Tax Officer tried to reopen assessment made more than four years earlier without taking the required satisfaction of the Commissioner of Income Tax/Central Board of Revenue. Mr. Mitra contends, in view of such mistake, the Income Tax Officer concerned after taking satisfaction from the aforesaid authority issued the subsequent two notices dated March 29, 1983. Accordidng to Mr. Mitra, if any return is submitted by the petitioner in obedience to the earlier notice dated 11th February 1983, those are to be ignored, inasmuch as those returns were filed pursuant to an illegal demand. Mr. Mitra, thus, contends that there was no illegality in initiating fresh proceeding by giving fresh notice dated 29th March 1983 after complying with the formalities required under the Income Tax Act. In support of such contention Mr. Mitra relies upon two decisions of the Allahabad High Court, one in the case of Ashok Kumar Dixit v. Income Tax Officer and Anr., reported in 198 ITR 669 and the other in the case of Sukhlal Ice & Cold Storage Company v. Income Tax Officer and Anr., reported in 199 ITR 129.
9. The only question that arises for determination, therefore, in this writ application is whether the Income Tax Officer could initiate fresh proceeding under Section 148 of the Act on 29th March, 1983 when pursuant to earlier invalid notice dated 11th February, 1983, the petitioner had already submitted returns.
10. After hearing the learned advocates for the parties and after going through the aforesaid materials, I find that the question involved herein has practically been answered by the Supreme Court in the case of Commissioner of Income Tax, Madras (supra) replied upon by Dr. Pal. In the said case, an invalid notice under Section 34 of the Income Tax Act, 1922 which is equivalent to Section 148 of the present Income Tax Act, was served and return was submitted pursuant to such notice. The question was whether that was a valid return and whether the notice of assessment ignoring such return could be upheld.
11. In such a fact, the Supreme Court was of the view that although the notice under Section 34 was invalid, the return submitted pursuant to that invalid notice was a “return” within the meaning of Section 22(3) of the said Act and the Income Tax Officer could not ignore or disregard that return and issue a fresh notice under Section 34 on the assessment that there had been omission or failure on the part of assessee to make a return of his income under Section 22, and on that ground the assessment under section 34 was held to be invalid. In the said case. Supreme Court further held that there was no warrant in the Income Tax Act for treating return as “voluntary returns” and “non-voluntary returns” and whatever be the impelling cause or motive, if a return, otherwise valid, is filed by an assessee before receipt of a valid notice under Section 34, it is to be treated as return within the meaning of Section 22(3) of the 1922 Act.
12. Applying the aforesaid principles to the fact of the case, it is clear that when the petitioner filed returns in compliance with the invalid notice dated 11th February, 1983 under section 148 of the 1961 Act, those returns should be treated as “return” and as such before making assessment on the basis of those returns, no further notice under section 148 of the Act could be passed.
13. I now propose to deal with the two decisions cited by Mr. Mitra. In the case of Sukhlal Ice & Cold Storage Company (supra), for reassessment, the Income Tax Officer issued a notice under section 148 of the Income Tax Act, 1961 for the assessment year 1982-1983 but the Tribunal held that the notice was illegal because the reason for issue of notice was not on record. Subsequently, the Income Tax Officer issued another notice under section 147 of the Act for the same assessment year by setting out necessary reason and after removal of defects pointed out earlier in such a case, it was held that since the Tribunal had recorded a finding to the effect that the very initiation of the proceeding under section 147 by the earlier notice was without jurisdiction, there was no earlier proceeding subsisting when the second notice was served upon the assessee.
14. In the case before us, the earlier notice has not been declared by any Tribunal as invalid and at the same time the returns submitted pursuant to earlier notices have not been assessed and thus the earlier proceedings were pending at the time of issuing second notice and as such the principle laid down in the said decision cannot have any application to the facts of the present case.
15. In the case of Ashok Kumar Dixit (supra), during the pendency of a proceeding in pursuance of notice issued earlier against the petitioner under section 148, a second notice under section 148 had been issued; but it docs not appear from the judgment passed in the said case whether the assessee filed any return pursuant to such notice. Under such circumstances, the Division Bench of the Allahabad High Court was of the view that only because the earlier notice had been issued, that by itself in law cannot be a bar for issuing second notice. Therefore, the said, decision cannot have any applications to a case, where pursuant to the first notice a return has already been filed. I have already pointed out that in this case, the second notice under section 148 was issued at a point of time when the assessee had already filed return for the self-same period and no assessment had been made on the basis of such return. Therefore, in the case of Ashok Kumar Dixit (supra) the Court had no occasion to deal with a situation like the one involved herein.
16. I, therefore, find that those two decisions cited by Mr. Mitra are of no avail to his client.
17. I, thus, quash the first two notices dated 11th February 1983 on the ground that required satisfaction of the Officer concerned were not taken for reopening assessment more than four years old. The other two notices dated 29th March, 1983 are set aside on the ground that those were issued at a point of time when the assessee had already submitted returns for those periods pursuant to an earlier invalid notice and so long those two returns are not assessed in accordance with law, there was no scope of issuing further notice under Section 148.
The writ application thus succeeds. Those four notices under section 148 are quashed. The respondents are directed to proceed with the assessment on the basis of returns filed by the petitioner pursuant to the earlier notices.
There will be no order as to costs.