JUDGMENT
V. K. GUPTA, J. :
Once again a notice issued by an AO, Dy. CIT, Special Range-12, Calcutta, in this case, is the subject-matter of a writ application filed by an assessee under Art. 226 of the Constitution of India. The AO has called upon, by the notice dt. 5th February, 1997, impugned in this petition, the petitioner to furnish certain information with regard to the petitioners claim for 100 per cent. depreciation allowance amounting to Rs. 35.10 crores in terms of s. 32 of the IT Act. The petitioner is aggrieved by certain observations, made in the impugned notice and has come up to this Court assailing the very jurisdiction of the AO to issue the notice and to call upon the petitioner to furnish the information mentioned in the notice itself.
2. Dr. Pal, learned advocate for the petitioner, has very vehemently contended that the AO has not only expressed her mind with regard to the subject-matter of allowing or not allowing depreciation for the 11 lakh electric meters which the petitioner claims to have purchased from the Gujarat State Electricity Board (GSEB) and which in terms were leased out to that Board by the petitioner. The contention of the petitioner is that since all the 11 lakhs electric meters were brand new, the petitioner was entitled to 100 per cent. depreciation in respect of all those meters under s. 32 of the IT Act.
Reliance has been placed by Dr. Pal upon certain judgments of the Supreme Court and the Calcutta High Court. Later on, stress has been laid upon some facts which the petitioner claims are “admitted facts”. Since the impugned notice is under challenge and it has been assailed very vehemently, it is desirable to reproduce the notice verbatim. It reads thus :
“Sub : Disallowance of depreciation of Rs. 35.10 crs. on electric meters.
Reference is invited to hearings on various dates with your representative, Mr. T. K. Neogi, in connection with the Income-tax assessment of K. C. T. Bros. (C.S.) for the asst. yr. 1994-95. It is found that the details relating to sale and lease back transactions relating to electric meters entered into with the GSEB have not been furnished to date. It is also seen that you have claimed 100 per cent. depreciation amounting to Rs. 35.10 crs. on the leased electric meters. You are required to show cause why depreciation on sale and lease back transaction not be disallowed in view of the fact that sale and lease back is merely a paper transaction.
Further, you are required to show cause why penalty under s. 271(1)(b) not be imposed for failing to give information called for under s. 143(2) in connection with the sale and lease back transaction.
The details pending are –
(i) whether the electric meters purchased by K.C.T. (C.S.) were already in use, or were brand new;
(ii) whether there was physical delivery of the electric meters from Baroda to Bombay and back and proof thereof;
(iii) Source of funding of the purchase of electric meters;
Compliance is called for on 13th March, 1997 at 11 a.m.”.
3. The contention of Dr. Pal is that the Dy. CIT by using the expression “you are required to show cause why depreciation of sale and lease back transaction not be disallowed in view of the fact that sale and lease back is merely a paper transaction” has shown that she has made up her mind in disallowing the depreciation and that according to Dr. Pal is the jurisdictional error which on the very face of the notice is erroneous and hence the petitioner wants that this Court should interfere in exercise of its writ jurisdiction. The grievance of the petitioner is that despite the petitioner having furnished all requisite information even prior to 5th February, 1997, the AO without taking into account all information has once again called upon the assessee-petitioner to furnish the information called for in the impugned show-cause notice.
What is the true purport and meaning of the expression “paper transaction” is also the argument advanced by the learned advocate for the petitioner. According to Dr. Pal, “paper transaction” is a concept which is not borne out from any provision of the IT Act and even though the 11 lakh electric meters were not physically taken over in the sale and lease transaction between the GSEB and the petitioner, the transaction cannot be called merely a paper transaction as the impugned expression may connote something other than a legitimate and genuine transaction.
4. Upon hearing the detailed submissions of the learned advocate for the parties and on consideration of all facts and circumstances, as also after giving my thoughtful consideration to the record shown by the learned advocates for the parties, I am of the opinion that this again is a case where the petitioner has unnecessarily approached this Court by invoking its extraordinary jurisdiction. I am saying so on the basis of the fact that the AO has not passed any final order in the matter. She is seized of the assessment proceedings in absolutely the normal course. If, in the course of her disposal of assessment proceedings and on consideration of the relevant facts, she finds that she requires certain information from the assessee, she may ask for it. If, in some communication, as in the impugned notice dt. 5th February, 1997, in the present case, she made some remarks or observations with regard to a particular claim of the petitioner, that at best can be termed as her casual or stray remarks or at best tentative conclusion about some issue. It is not unusual for quasi-judicial authorities to make observations and remarks like the one attributed to the AO, and even to make some tentative observations about some points in issue. Quasi-judicial authorities are supposed to pass final orders only after due consideration of all facts and circumstances of the case, consideration of the materials on record, due application of law upon such material and on hearing the parties with regard to all the issues involved in the case. No quasi-judicial authority is supposed to act in a manner which may amount to a party being denied the opportunity of being heard. I have very carefully seen the impugned show cause notice and I have no doubt in my mind that the AO in the present case has not expressed any final opinion with regard to the issues involved before her, particularly with respect to the petitioners claim for 100 per cent. depreciation for 11 lakh meters which it says it has leased to the GSEB. Whether the petitioner is entitled to claim this depreciation, at the rate of 100 per cent. or at some other rate and if so on all the meters that it says it purchased and ultimately leased out, are all such facts and issues which this Court is hardly in a position to determine. All these facts, issues and questions are such which relate to the exclusive domain of the AO. She alone is the competent authority under law to decide all these questions and undoubtedly she is supposed to decide them upon due consideration of all facts that are before her and after hearing the petitioner fully and effectively. Her decision on all such questions is always subject to further scrutiny of the first appellate forum and even further appeal before the Tribunal. The petitioner is not without any remedy even if it presumes that the decision of the assessing authority may go against it. I am only referring to the petitioners apprehension. I am not saying that the decision will or will not go against the petitioner. For all one may say, the AO may ultimately decide in favour of the petitioner and may even allow 100 per cent. depreciation with regard to all the 11 lakh meters that the petitioner claims it purchased and ultimately leased out to the GSEB.
The argument that if the decision goes against the petitioner, the petitioner may have to pay Income-tax is also without substance. No assessee can be permitted to circumvent or shortcircuit the normal procedure by approaching this Court as and when the proceedings are either initiated by the ITO or when the ITO is seized of proceedings in the normal course, only on the ground of liability to pay tax.
5. All the judgments that Dr. Pal cited in support of his contention are wholly inapplicable to the facts of the case. In all these judgments, it has clearly been held and laid down that the Courts interfere only when the facts clearly and unequivocally are admitted by both the parties, all those admissions amounting to a patent jurisdictional error upon the authority issuing notice. That undoubtedly is the settled law. In the case before us, such is not the position.
For the foregoing reasons, therefore, I dismiss this petition with costs assessed at Rs. 5,000.
The prayer of the learned advocate for the petitioner for stay of the operation of the judgment is rejected.