Decided on October 29,1968



- (1.) THE Income-tax Officer, Kottayam is the appellant. He has challenged the decision of Mr. Justice M. U. Isaac allowing an original petition 805 of 1966 moved by the respondent seeking to quash a notice Ext. P-1 purported to he under section 147 of the Income-tax Act, 1961 as well as a further notice Ext. P-5 under section 143 (2) of the same Act. Various contentions were raised before the learned Single Judge and had been considered by the Single Judge and many questions have also been argued before us on which we express no opinion whatever in view of the injunction contained in the Judgment of the Supreme court in Lalji Haridas v. R. H. Bhatt, (1965) 55 ITR 415 (SC ). A part of the judgment was quoted by the learned Judge. But it appears to us that the full impact of the judgment has not been realised by the learned Judge. The relevant passage runs thus: --"mr. Pathak for the appellant attempted to argue that the notice issued against the appellant is, on the face of it, invalid, because it is barred by time. We did not allow Mr. Pathak to develop this point, because we took the view that a plea of this kind must ordinarily be taken before respondent No. 1 himself. The jurisdiction conferred on the High Court under Article 226 is not intended to supersede the jurisdiction and authority of the Income tax Officers to deal with the merits of all the contentions that the assessees may raise before them, and so it would be entirely inappropriate to permit an assessee to move the High Court under Article 226 and contend that a notice issued against him is barred by time. That is a matter which the income-tax authorities must consider on the merits in the light of the relevant evidence. Apart from this aspect of the matter however, the plea of limitation sought to be raised by Mr. Pathak was not even specifically made as it should have been in the writ petition filed before the High Court. One of the grounds taken in the writ petition was that the Appellate Assistant commissioner had 'instead of treating the assessment order as a nullity and having the same set aside, illegally remanded the case back to the income-tax Officer to save limitation'. It would be noticed that at its highest, this ground can mean that the result of the remand order was to attempt to save limitation; it has no relevance on the point sought to be raised by Mr. Pathak that the notice issued against his client initially was barred by time. 'but, as we have already indicated, a plea of this kind cannot be permitted to be raised in writ proceedings, and so we refused Mr. Pathak permission to develop this point. ''
(2.) THE sentence underlined (here in ' ') above was not extracted in the judgment under appeal and we think that concludes the matter about the purported exercise of the jurisdiction under Article 226 of the Constitution in matters such as that before us. One of the points raised by the assessee is that the notice under section 147 is barred by limitation. No doubt there are other points as well. These also pertain to the question as to whether a notice under Section 147 can and should be issued; matters well within the jurisdiction and competence of the income-tax Officer to decide.
(3.) THE assessee has filed a return in pursuance of the notice and has taken his objections as evidenced by Ext. P-4. The objections raised in Ext. P-4 and all other objections, if any, can and ought to be considered by the Income-tax Officer. The petitioner in the original petition may raise his objections before the Income-tax officer and it will be considered by the Income-tax Officer and appropriate orders passed. Subject to the above, we must set aside the judgment under appeal and dismiss the original petition. We do so We direct the parties to bear their costs.;

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