R.R. Misra, J. - (1.) The petitioner is a partnership firm. On January 28, 1985, it was served with a notice under Section 148 of the Income-tax Act, 1961 (hereinafter referred to as "the Act" ), for the assessment year 1982-83. Ultimately, an assessment order was passed by the assessing authority on July 31, 1989. On appeal preferred by the assessee against the assessment order, the first appellate authority by his order dated July 30, 1989, remanded the case back to the assessing authority. The assessee still feeling aggrieved against the said order of the first appellate authority filed a second appeal before the Income tax Appellate Tribunal contending that the very initiation of the proceedings under Section 148 of the Act was without jurisdiction. The Tribunal, however, by its order dated March 30, 1990, allowed the appeal of the assessee and accepted the said contention of the assessee holding that the issue of the impugned notice so served on January 28, 1985, was illegal as the reasons for the issue of the said notice were not on record. The Commissioner of Income-tax filed a reference application before the Income-tax Appellate Tribunal, which was rejected. It was followed by an application under Section 256(2) of the Act which too was ultimately rejected by the court on April 29, 1991. The net result was that the legal position as declared by the Appellate Tribunal by its order dated March 30, 1990, prevailed.
(2.) Meanwhile the Income-tax Officer issued on March 29, 1990, another notice under Section 147 of the Act for the said assessment year by setting out the necessary reasons and removing the defect pointed out earlier. It is this notice dated March 29, 1990, issued under Section 147 of the Act for the assessment year 1982-83 is under challenge in this writ petition.
(3.) We have heard learned counsel for the petitioner. His sole submission is that in the presence of the first notice under Section 147 of the Act which was served on January 28, 1985, the impugned notice issued on March 29, 1990, was not sustainable in law. We, however, do not agree with the aforesaid submission for two reasons, firstly that the order dated March 30, 1990, passed by the Income-tax Tribunal having become final, the legal effect of the same is as if the earlier notice served on January 28, 1985, was without jurisdiction. The assessee can now not be permitted to take any turn to advance an argument that because of the existence of the first notice under Section 147 of the Act, the impugned notice issued on March 29, 1990, is bad in law. During the course of his argument, Shri M. S. Pipersani appearing for the petitioner has relied upon a Division Bench decision of this court in the case of STO v. Firm Ram Das Ram Dutt [1973] UPTC 20. It has been held in the said case where original assessment proceeding is pending, it cannot be said that any part of the turnover has escaped assessment. This position, however, does not operate at all in the present case. In the present case since the Tribunal has recorded a finding to the effect that the very initiation of the proceedings under Section 147 of the Act by the first notice was without jurisdiction, therefore, it cannot be said that the said proceedings were any proceedings in the eyes of law, what to say, that they were pending. Thus the said authority is of no avail to learned counsel for the petitioner. Moreover, we also find from a copy of annexure-5 to the writ petition that the second notice dated March 29, 1990, was actually served on the assessee on March 30, 1990, on which date the proceedings under first notice under Section 147 of the Act were already declared as without jurisdiction and consequently no earlier proceedings will be subsisting on March 30, 1990. No other argument was advanced.;