- (1.) HEARD Mr. S.M.K. Chaudhary, Senior Advocate duly assisted by Mr. Rahul Srivastava, learned Counsel for the petitioner and Mr. D.D. Chopra, learned Counsel for the opposite parties.
(2.) WITH the consent of parties counsel, the writ petition is being disposed of at the admission stage itself.
(3.) THE petitioner -assessee is wholly owned Corporation of the Government of Uttar Pradesh and is engaged in the business of supply of essential commodities for general public. For the assessment year 2009 -10, the return was filed on 30 -9 -2009 declaring the total income of Rs. 9,31,55,772, but subsequently revised its income on 29 -1 -2011 declaring the total income of Rs. 1,95,657. However, the assessing officer passed the assessment order dated 28 -12 -2011 and assessed the total income of Rs. 9,53,22,160 on which interest as well as penalty proceedings was directed to be initiated. Against this order, the petitioner filed an appeal before the Appellate Authority/opposite party No. 2. Vide order dated 8 -10 -2012, the Appellate Authority, while partly allowing the appeal, allowed the exemption under section 10 (26AAB) of the Income -tax Act. The order passed by the First Appellate Authority was challenged by the department by filing a second appeal before the Tribunal and the same is pending adjudication. In the meantime, the petitioner has submitted the return for the assessment year 2010 -11, but on account of the subsequent development that in appeal, the appellate authority exempted the income under section 10(26AAB), he claimed exemption. However, a notice under section 143(2) of the Act for the assessment year 2010 -11 was issued. Learned counsel for the petitioner submits that the exemption has already been allowed by the Appellate Authority, who is a higher authority. Though an appeal has been preferred by the department, but no order has been passed. Therefore, it is not open for the Assessing Authority to issue show cause notice and take cognizance. In support of his submissions, he has relied upon the case of Union of India v. Kamlakshi Finance Corpn. Ltd. : AIR 1992 SC 711.;