S R KALANI Vs. INCOME TAX OFFICER ADDL

JUDGEMENT

(1.) THIS is a petition under Arts. 226 and 227 of the Constitution of India.

(2.) THE facts giving rise to this petition may briefly be stated as follows: THE petitioner was assessed as an HUF for the asst. yr. 1973-74, the accounting year having ended on March 31, 1973. THE original assessment was made by the ITO, A-Ward, Indore, on December 28, 1974, under s. 143(3) of the IT Act, 1961 (hereinafter referred to as "the Act"). THE order of the ITO was confirmed in the appeals preferred by the petitioner to the AAC and the Tribunal. On March 13, 1975, the petitioner received a notice (annex. E) under s. 148 of the Act for reopening of the assessment for the year 1973-74, under s. 147(a) of the Act. THE petitioner objected to the issuance of the said notice on June 26 , 1975, and also filed return under protest in pursuance of the said notice. THE objections of the assessee were not decided by the ITO, A-Ward, Indore, and the case was transferred to the ITO, B-Ward, Indore. THE petitioner repeated his objections before the ITO, B-Ward, on July 20, 1978, and also challenged his jurisdiction to reopen the assessment. THEreafter the case was transferred to the ITO, Addl. A-Ward, Indore. THE petitioner repeated the objections before him also on December 5, 1978. THE petitioner also requested the ITO to disclose to him the reasons for the reopening of the assessment. On January 15, 1979, the ITO issued a notice to the petitioner to explain as to why the income alleged to have been derived by Smt. Badamibai and grandsons of the petitioner from whatever business be not added to the income of the assessee. It was stated that pursuant to the finding given by the ITO in regard to the assessment of the petitioner for the year 1962-63, that a sum of Rs. one lakh alleged to have been given to Badamibai as her share in a partial partition or family arrangement having not been accepted by the Department the income of Badamibai and the donees to whom the amounts were gifted by Badamibai has to be treated as the income of the petitioner. On this account, the assessment of the petitioner for the asst. yr. 1962-63 and onwards were reopened.

(3.) THERE is another insurmountable hurdle in the way of the petitioner. The notice under s. 148 of the Act was issued to the petitioner on March 13, 1975, and this petition has been filed on August 29, 1979. THEREfore, there is inordinate delay in the filing of this petition and it deserves to be dismissed on this ground also. The learned counsel for the petitioner contended that after the notice was issued the petitioner raised objections before the ITO and the case was transferred from one officer to another without deciding the objections which were repeated from time to time and that the ITO also did not disclose the reasons for initiating proceedings under s. 147 of the Act although he was requested to do so by the petitioner and that the draft order under s. 144B of the Act was passed on February 22, 1979, and was received by the petitioner on March 12, 1979, and that the petitioner also raised objections to the draft order which were forwarded by the ITO to the IAC and that the IAC passed an order on August 18, 1979, directing the ITO under s. 144B(4) of the Act to finalise the assessment., He, therefore, contended that there was no delay on the part of the petitioner to file this petition. The learned counsel for the Petitioner further contended that as the ITO had no jurisdiction to initiate proceedings under s. 147 (a) of the Act and the notice issued by him under s. 148 of the Act was null and void, and the petition cannot be dismissed merely on the ground of delay. We are not impressed, by the submissions of the learned counsel for the petitioner. As stated above we are not satisfied that the ITO had no jurisdiction to initiate proceedings under s. 147(a) of the Act and to issue notice to the petitioner under s. 148 thereof. The delay in challenging the notice issued to the petitioner under s. 148 of the Act cannot be justified by reason of the subsequent steps taken by the petitioner before the ITO. If the petitioner was really aggrieved by the notice issued to him under s. 148 of the Act on the ground that the ITO had no jurisdiction to initiate proceedings under s. 147 of the Act he should have filed this petition within a reasonable time from the receipt of the said notice. We are, therefore, not satisfied with the explanation given by the petitioner in filing this petition after the expiry of more than 4 1/2 years from the receipt of the notice under s. 148 of the Act and are of the opinion that this petition should also be dismissed on the ground of delay. In this view of the matter, we do not think it necessary to decide in this petition the further contentions of the learned counsel for the petitioner that the ITO committed an error of law in passing a draft order under s. 144B of the Act because according to him the provisions of s. 144B of the Act are applicable only to an original assessment and not to an assessmentunder s. 147 of the Act. The petitioner, if occasion arises, shall have an opportunity to, raise the said objections in appeal from the order of assessment that may be passed in the case.