2006-VIL-466-ALH-DT

Equivalent Citation: [2006] 285 ITR 179

ALLAHABAD HIGH COURT

Civil Misc. Writ Petition No. 540 of 2001, Civil Misc. Application No. 107827 of 2005, Civil Misc. Review Application No. 107829 of 2005, Civil Misc. Review Application No. 107829 of 2005

Date: 13.04.2006

AJAY KUMAR MAHESHWARI AND ANOTHER

Vs

INCOME TAX OFFICER

BENCH

Judge(s)  : R. K. AGRAWAL., PRAKASH KRISHNA.

JUDGMENT

The judgment of the court was delivered by

R.K. Agrawal J.- The applicants-Arun Kumar Maheshwari and Amit Kumar Maheshwari-by means of Civil Miscellaneous Writ Petition No. 538 of 2001 and Civil Miscellaneous Writ Petition No. 539 of 2001, respectively, filed under article 226 of the Constitution of India had challenged the validity of the separate notice dated March 15, 2001, issued under section 148 of the Income-tax Act, 1961 (hereinafter referred to as "the Act"), for the assessment year 1995-96 on the ground that the said notice is absolutely illegal, arbitrary and had been issued only on account of change of opinion and there was no material on the basis of which a sum of Rs. 14 lakh and Rs. 19.60 lakhs, respectively, can be said to be the income of the applicants on the basis of which an opinion can be formed about the escaped assessment. The writ petition was heard along with two other writ petitions involving similar issues and was dismissed vide a common judgment and order dated December 3, 2004. The court had held that there was relevant material before the Income-tax Officer to form the reasonable relief that the income had escaped assessment. The challenge to the validity of the notice issued under section 148 of the Act was repelled by the court. Both the applicants challenged the judgment and order dated December 3, 2004 passed by this court before the hon'ble apex court by filing petitions for Special Leave to Appeal (Civil No. 6712-6713 of 2005) which came up for consideration before the hon'ble apex court on April 11, 2005. The applicants sought permission to withdraw the special leave petition, which was granted. The apex court has passed the following order:

"Learned senior counsel appearing for the petitioner, inter alia, submits that under section 151 of the Income-tax Act the assessment if to be reopened then the same can be done only after the permission is obtained from the Chief Commissioner which has not been done in these cases. He also submits that the reopening can only be done by an officer not below the rank of Joint Commissioner. From the impugned judgment we do not find that this issue has been raised before the Tribunal. However, learned senior counsel points out from the grounds of the SLP that such grounds have been raised but not reflected in the judgment. If that be so, the appropriate remedy for the petitioners is to approach the High Court by way of review petition to point out these deficiencies.

Learned counsel seeks permission to withdraw these petitions. Prayer is granted. The special leave petitions are dismissed as withdrawn."

Thereafter, both the applicants had filed separate applications seeking review of the judgment and order dated December 3, 2004 along with an application seeking condonation of delay in filing the review application. The review applications have been filed on the following grounds:

(i) Section 151(2) of the Act mandates that no notice shall be issued under section 148 of the Act by the Assessing Officer who is below the rank of a Joint Commissioner after the expiry of four years from the end of the relevant assessment year unless the Joint Commissioner is satisfied on the reasons recorded by the said Assessing Officer that it is a fit case for issue of such notice;

(ii) Since the Assessing Officer was not in the rank of a Joint Commissioner, it was imperative for the Assessing Officer to have first obtained the sanction from the Joint Commissioner prior to issue of a notice for reassessment. A bare perusal of the notice for reassessment as well as the reason for reopening of the assessment would show that no satisfaction was recorded by any Joint Commissioner prior to the issue of notice by the Assessing Officer for reassessment. Thus, the entire proceeding for reassessment was without jurisdiction; and

(iii) The aforesaid points were raised before this court at the time of hearing of the writ petition by senior counsel, Sri V.B. Upadhaya and the fact is also highlighted in paragraphs 3(a) and (b) of the rejoinder affidavit which issues of jurisdiction were unadjudicated by this court.

In the counter affidavit filed by Sri Subhash Chandra Saxena, Income-tax Inspector, Ward I, Income-tax Officer, Bijnor, it has been stated that the petitioner's counsel did not raise the plea of jurisdiction before this court and it is not open to him to raise this plea from the back door in a review application.

In reply to the counter affidavit filed in the review application, it has been reiterated that the aforesaid plea was taken in the rejoinder affidavit of the writ petition. It has further been stated that the hon'ble apex court in its order dated April 11, 2005, had permitted the petitioner to raise this plea by means of a review application.

We have heard Sri V.B. Upadhaya, learned senior counsel, assisted by Sri Rakesh Ranjan Agrawal, advocate on behalf of the applicant, and Sri Shamboo Chopra, learned standing counsel appearing on behalf of the Revenue.

Sri Upadhaya, learned senior counsel, submitted that the plea regarding sanction for issue of notice not having been given by the Joint Commissioner, was specifically raised by him in the course of the arguments, which plea had not been dealt with by this court while dismissing the writ petition vide judgment and order dated December 3, 2004, According to him, sanction in both the cases has been given by the Additional Commissioner of Income-tax and, therefore, the sanction did not meet the requirement of sub-section (2) of section 151 of the Act.

Sri Shamboo Chopra, learned standing counsel, however, submitted that the plea regarding sanction having not been given by the Joint Commissioner, was not raised before this court at the time of arguments and, therefore, it is not open to the applicants to seek review of the judgment and order of this court on a point which was not raised.

Before adverting to the various pleas raised by learned counsel for the parties, we deem it fit and proper and in the interest of justice to condone the delay in filing the review applications as the grounds given in the application seeking condonation do make out sufficient cause. We accordingly condone the delay in filing the review applications.

Coming to the merits of the review applications including their maintainability, we find that Sri Upadhaya is correct that the plea that the Joint Commissioner had not granted sanction to the issuance of the notice under section 148 was raised by him during the course of the arguments.

However, we find from our notes that the court had specifically pointed out to learned counsel for the applicant that there was no averment in the writ petition regarding sanction having been granted by the Additional Commissioner and not by the Joint Commissioner nor was there any averment assailing the notice for non-fulfilment of the provisions of section 151(2) of the Act. When this fact was pointed out, learned senior counsel appearing for the petitioner did not refer to the averments made in the rejoinder affidavit which was filed before the court on October 29, 2004, and the arguments were heard on November 5, 2004. It may be mentioned here that in paragraph 3 of the rejoinder affidavit filed by Ajay Kumar Maheshwari in both the writ petitions identical averments have been made as follows:

"3. That before giving parawise reply to the counter affidavit the deponent craves the leave of this hon'ble court to place certain more facts, which are essential for just appreciation of the controversy involved in the instant case.

(a) That it is submitted that the notice under section 148 of the Income-tax Act is illegal as the Income-tax Officer, Ward Bijnor, has no jurisdiction to issue such notice to the petitioner. Section 151(2) of the Income-tax Act prescribes procedure where the assessment under section 143(1) has been made and the notice under section 148 of the Act shall not be issued by the Assessing Officer, who is below the rank of Joint Commissioner of Income-tax. Section 116 of the Income-tax Act prescribes various income-tax authorities wherein Income-tax Officer or the Joint Commissioner of Income-tax are separately defined. In such circumstances reassessment proceedings initiated by the respondent against the petitioner are wholly without jurisdiction illegal and liable to be quashed.

(b) That the action of the respondent under section 148 of the Act is also without jurisdiction on the ground that since four years from the relevant assessment years have already been expired as such initiation of proceedings under section 148 of the Income-tax Act can be resorted to only after obtaining the satisfaction of the Chief Commissioner or Commissioner of Income-tax whereas in the present case, upon a perusal of the reasons recorded, it is apparent that the Income-tax Officer concerned has sent the proposal to the Additional Commissioner of Income-tax for his sanction under section 151 of the Act.

(c) That it may be stated here that upon perusal of the reasons dated March 15, 2001, it is apparent that the Income-tax Officer prior to receiving/obtaining the sanction, had initiated the proceedings under section 148 of the Income-tax Act, which is contrary to the proviso to section 151(1) of the Act, as such the proceedings for reassessment are illegal and liable to be quashed."

It may also be mentioned here that the aforesaid plea regarding non-compliance with the provisions of section 151(2) of the Act and the sanction not being given by the Joint Commissioner was taken for the first time in the rejoinder affidavit which was filed about a week before the arguments were heard (rejoinder affidavit having been filed on October 29, 2004, and the arguments having been heard on November 5, 2004) there was no occasion or opportunity to the Revenue to meet the new plea which was taken for the first time in the rejoinder affidavit. Thus, the applicants could not have been permitted to raise a new plea which even did not find mention in the writ petition.

The court also pointed out the definition of the words "Additional Commissioner" given in clause (28C) of section 2 of the Act which define "Joint Commissioner" to mean a person appointed to be a Joint Commissioner of Income-tax or an Additional Commissioner of Income-tax under sub-section (1) of section 117 of the Act whereupon the matter ended there and the court in its wisdom did not think it proper to bring on record the aforementioned development.

Even otherwise, we find that this court in the case of Dharam Pal Singh Rao v. ITO [2004] 271 ITR 223, has held that the Additional Commissioner would be a Joint Commissioner within the meaning of the words "Joint Commissioner" under sub-section (2) of section 151 of the Act in view of the definition of the words "Joint Commissioner" given in section 2(28C) of the Act. The aforesaid decision has been followed by this court in the case of Farrukhabad Gramin Bank v. Addl. CIT [2005] 277 ITR 320, wherein this court has held as follows:

"Section 2(28C) of the Act defines the words 'Joint commissioner' as follows:

'(28C) "Joint Commissioner" means a person appointed to be a Joint Commissioner of Income-tax or an Additional Commissioner of Income-tax under sub-section (1) of section 117;'

From a reading of the definition of the words 'Joint Commissioner', reproduced above, it is seen that an Additional Commissioner of Income-tax is also the Joint Commissioner. This court in Civil Miscellaneous Writ Petition No. 1646 of 2002, Dharam Pal Singh Rao v. ITO [2004] 271 ITR 223 (All) decided on August 5, 2004, has held that in view of the definition of the words 'Joint Commissioner' in section 2(28C) of the Act, an Additional Commissioner is to be treated as a Joint Commissioner."

The aforesaid two decisions have been following subsequently by this court in Civil Miscellaneous Writ Petition No. 533 of 2002, Dr. Shashi Kant Garg v. CIT [2006] 285 ITR 158 (All) decided on August 10, 2005.

In view of the foregoing discussions, we are of the considered opinion that the present applications seeking review of our judgment and order dated December 3, 2004, are not maintainable, both on the facts and law, and are accordingly hereby dismissed.

 

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