- (1.) WE have heard Shri R.P. Agarwal for the petitioner. Shri Govind Krishna appears for the respondents.
(2.) BY this writ petition the petitioner has prayed for direction in the nature of certiorari calling for the record of the case and to quash the reassessment order dated 29.12.2006 passed by the Income Tax Officer, Ward-4 (1), Agra-respondent no.1 under Section 143 (3) / 147 of the Income Tax Act, 1961 (the Act) for the assessment year 1999-2000. The petitioner has also prayed for direction to respondent no.1 not to give effect to the order dated 29.12.2006, and to restrain the respondent no.1 from making recovery in pursuance to the said assessment order. A preliminary objection has been taken by Shri Govind Krishna that the petitioner has right to appeal against the order under the Act and thus this writ petition in view of the statutory alternative remedy is not maintainable. It is submitted by Shri R.P. Agarwal that the petitioner company is registered under the Companies Act having its registered head office at Loha Mandi, Naraina, New Delhi and is filing its income tax return with the Assessing Officer, Ward-3 (1), New Delhi, which alone has jurisdiction in the matter of the petitioner. A notice was issued on 23.2.2004 by the Income Tax Officer, Ward-4 (1), Agra,-respondent no.1 seeking information in respect of assessment years 1998-99 to 2001-02, which was submitted by the petitioner in which it was also stated that the petitioner was assessed to tax at Ward No.3 (1), New Delhi. On 30.3.2006 a notice under Section 148 was issued by the respondent no.1 for the assessment year 1999-2000 at the petitioner's address at 21/20, Chiman Lal Road, Freeganj, Agra. The notice was returned by the branch office of the petitioner on the ground that it was not addressed to its principal place of business at Delhi. It is stated that notice was, thereafter, sent on the same day on 30.3.2006 to the petitioner at its address at Y-192, Loha Mandi, Naraina, New Delhi in respect of assessment year 1999-2000, which was received by the petitioner on 10.7.2006 . The petitioner filed objections to the notice to respondent no.1 challenging the jurisdiction annexing therewith photocopy of the returns for the assessment years 1999-2000 and assessment year 2005-06. The petitioner also stated that the notice is barred by limitation as it has been issued 6 years after the end of the relevant assessment year. It is alleged that the reply was directed to be transferred to Delhi immediately as it was time barring case.
(3.) IT is stated that the notice was issued on 21.9.2006 by respondent no.1 under Section 142 to the branch office of the petitioner at Agra at 21/2-, Chimanlal Road, Freeganj, Agra with the PAN numbers of different persons fixing 29.9.2006. The petitioner's counsel filed his appearance, discussed the issue with respondent no.1 stating that the officer has no jurisdiction as the jurisdiction in the petitioner's case lies with the Assessing Officer, Ward-3 (1), New Delhi. The respondent no.1, by her letter dated 4.10.2006 of the captioned subject: Transfer of case in respect of CR Foods (India) Pvt. Ltd., Y-192, Loha Mandi, Naraina, New Delhi, PAN AAACC5019N; informed the Asstt. Commissioner Income Tax (Company) Circle-5 (3), New Delhi, that on the basis of information received from Addl. DIT (Inv) Agra dated 10.12.2003 during search and seizure operation on 9.5.2002 in Ganga Ram Agrawal Group of cases consisting of Ganga Ram Agrawal, Om Prakash Agrawal; Shree Ram Niwas Agrawal and their family members and concerns, it came to the notice that the above parties provided cheque in lieu of cash receipts from the persons (debtors), who wanted to have entries of loans in their books of account. After a certain period when the person was not in the need of funds generated through entries of loans and wanted to reverse the entry, cheques were received by the above party by making withdrawals, of self, from the Bank accounts of the concern or received from any other person, who again was in a need of the entry of loans, money was returned to that person after deducting the commission. The party was only name lender and the amount of loan shown by the debtor (the assessee) is nothing but the assessee's own undisclosed income routed through the above party. In the present case the loan of Rs.1,32,45,426/- as per details in the reasons recorded for the issue of notice u/s 148 was found as bogus, as it was assessee's own income from undisclosed sources. The respondent no.1 further wrote that since the case is time barring one, the bunch of papers i.e. Form of recording reasons for initiating proceedings under Section 148 (in original), notice under Section 148 duly served upon the assessee was enclosed. The reply of the assessee along with vakalatnama of his counsel and photocopy of the return filed for the assessment year 1999-2000 at New Delhi, and order sheet are transferred as jurisdiction of the case lies with the addressee. The request was made to take necessary action keeping in view that the case was time barring. The office of the Deputy Commissioner of Income Tax, Circle-5 (1), Central Revenue Building, New Delhi by its letter dated 20.10.2006 returned the record to the Income Tax Officer, Ward-4 (1), Agra- the respondent no.1, with remarks in para 4 that in view of G.K.N. Driveshafts (India) Ltd. v. ITO, 259 ITR 19, the objections filed by the assessee should be disposed off before passing the assessment order. Since the assessee had raised objections on technical ground, his office is unable to pass any order. A note was appended at the bottom of page 1 in para 5 that the present jurisdiction over the case lies with ACIT, Circle-3 (1), New Delhi. ;