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SCA/7335/1998 2/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7335 of 1998
=========================================================
HYNOOP
FOOD & OIL INDUSTRIES LTD., - Petitioner(s)
Versus
ASSISTANT
COMMISSIONER OF INCOME TAX - Respondent(s)
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Appearance :
MR
MJ SHAH FOR MR JP SHAH for Petitioner(s) : 1,
MR
MANISH R BHATT for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE D.A.MEHTA
and
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 03/07/2008
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE D.A.MEHTA)
1 This
petition challenges Notice dated 29.07.1998 for Assessment Year
1991-92 issued under section 148 of the Income Tax Act, 1961 (the
Act) by the respondent.
2 The
learned Advocate for the petitioner states that the impugned Notice
has been issued beyond a period of four years from the end of the
relevant Assessment Year and hence, unless and until the respondent
establishes that any of the conditions stipulated by provisions of
the Proviso to section 147 of the Act are satisfied, the action of
initiating reassessment proceedings is bad in law. It is stated that
the assessment order has been framed under section 143(3) of the
Act on considering : [i] the original return of income filed on
31.12.1991 and [ii] revised return of income filed on 29.05.1992.
That the aforesaid exercise was carried out after issuing notices
under sections 143(2) and 142(1) of the Act. That the assessment
order in question records that the Chartered Accountant representing
the petitioner assessee and the Manager (Finance) of the petitioner
assessee attended in response to the statutory Notices. Therefore,
the only condition on fulfilment of which the respondent could have
issued Notice under section 148 of the Act was failure or omission
on part of the petitioner to disclose fully and truly all material
facts relevant for the assessment of the assessment year in
question.
3 On
behalf of the respondent authority learned Standing Counsel
Mr.M.R.Bhatt has placed on record copy of reasons recorded on
21.01.1998.
4 At
this stage, on going through the reasons recorded it is noticed
that the reasons have been recorded and signature appended by one Mr.
R.P.Meena, Assistant Commissioner of Income Tax, Central Circle, 1(2)
Ahmedabad while the impugned Notice (Exh.I) dated 29.07.1998 has
been issued by one Mr.Ramesh Chander. The learned Senior Standing
Counsel has therefore been called upon to verify the record of the
respondent department and state whether the officer who has issued
the Notice under section 148 of the Act has recorded his
satisfaction as to escapement of income, or whether there is any
noting to suggest that the successor officer has agreed with the
reasons recorded by the predecessor officer.
5 The
aforesaid exercise is necessitated in light of the opening portion of
section 147 of the Act which stipulates that action may be initiated
if Assessing Officer ?Shas reason to believe?? that any
income chargeable to tax has escaped assessment for any Assessment
Year. When this provision is read in conjunction with section 148(2)
of the Act which mandates that the assessing officer shall, before
issuing any Notice under section 148 of the Act, record his reasons
for issuing Notice it is clear that the officer recording reasons
u/s. 148(2) and the officer issuing notice u/s. 148(1) has to be the
same person. The form of the Notice itself indicates that the
authority has to record ?Swhereas I have reason to believe that
…. income liable to tax for the assessment year ….has escaped
assessment within the meaning of section 147 of Income Tax Act,
1961??.
6 In
the circumstances, prima facie, a successor officer cannot issue
Notice under section 148 of the Act on the basis of satisfaction
recorded by the predecessor officer because the reason to believe has
to be of the officer concerned, viz. the officer issuing Notice under
section 148 of the Act.
7 The
matter to come up on 07.07.2008.
Sd/- Sd/-
(D.A.
Mehta, J.) (H.B. Antani, J.)
M.M.BHATT
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