SURYA PRAKASH KESARWANI, J. - (1.) THESE three writ petitions have been preferred challenging the notices under Section 148 of the Income Tax Act 1961 (hereinafter referred to as the Act) for reassessment under Section 147 of the Act on common grounds with the only difference with regard to the quantum involved in different assessment years namely AY 2002 -03, 2003 -04, 2004 -05, 2005 -06 and 2006 -07. The Writ Petition No. 1366 of 2009 pertains to AY 2003 -04; Writ Petition No. 1367 of 2009 pertains to AY 2006 -07; and Writ Petition No. 1368 of 2009 pertains to AY 2002 -03, 2004 -05 and 2005 -06. Since the facts and controversy involved in all these three writ petitions is common the Writ Petition No. 1366 of 2009 is taken up as the leading case.
(2.) IN Writ Petition No. 1366 of 2009 , the petitioner has prayed for the following relief : "(i) Issue a writ order or direction in the nature of certiorari quashing the notices under Section 148 of the Income Tax Act for the Assessment Years 2003 -04 contained in Annexure No.5 to this writ petition. (ii) Issue a writ order or direction in the nature of mandamus directing the respondent authorities not to make any reassessment against the petitioner under Section 147 in pursuance of the notice contained in Annexure No.5 of the writ petition. (iii)Grant such other/further relief, as the Hon'ble Court may deem just and appropriate in the facts and circumstances of the case." Briefly stated the common facts in the present cases are that the petitioner is a Trust created under the Trust Deed dated 26.5.1998 as corrected by the Deed dated 19.9.2000. The assessments of the Trust for AY 2003 -04 and 2006 -07 were completed under Section 143(3) of the Act. The Trust is registered under Section 12 AA and Section 80G of the Act. It is alleged in the writ petition that the trust is engaged in imparting and spreading education by establishing various educational institutions and running hospitals to give treatment and relief to the weaker sections of the society. It has started paramedical courses and training for nurses.The colleges established by the Trust and its courses are approved and recognized by Medical Council of India, Dental Council of India and by the Director, Medical and Health, U.P., and the C.M.O. Bareilly. In paragraph -11 it is alleged that there are 100 seats in each colleges. Two batches of BDS courses have passed out and MDS course is running in second year. The MBBS course is running in third year and the college is in process of taking admission of the students for the fourth year. A notice dated 25.3.2009 under Section 148 of the Act was issued to the petitioner for AY 2003 - 04. A notice dated 26.3.2009 for AY 2006 -07 was issued to the petitioner under Section 148 of the Act. Likewise notice dated 19.3.2009 for AY 2002 -2003, notice dated 19.3.2009 for AY 2004 -05 and notice dated 26.3.2009 for AY 2005 -06 were issued to the petitioner under Section 148 of the Act. All these notices have been challenged in these writ petitions on the ground that in the absence of the existence of ingredients of Section 147 of the Act, these notices are wholly without jurisdiction. For AY 2003 -04, an additional ground has been taken that since the notice has been issued after four years from the end relevant assessment year for which assessment under Section 143 (3) of the Act has been completed in the absence of any material that income chargeable to tax as escaped assessment by reason of failure on the part of the assessee to make a return under Section 139 or in response to a notice issued under Sub Section (1) of Section 142 or Section 148 or to disclose fully and truly all material facts, the impugned notice is wholly without jurisdiction.
(3.) IT is not disputed that for all the assessment years in question similar notices under Section 148 along with reasons recorded, were issued to the petitioner with the only difference of figures involved in each of the assessment years. The reasons supplied along with the notice under Section 148 of the Act for AY 2003 -04 is reproduced below : " ORDER SHEET M/s Rohilkhand Educational Charitable Trust, Office at Keshlata Hospital, Delapeer, Bareilly PAN ; AAATR69023 F.Y. 2002 -03 A.Y. 2003 -04 Assessee is a charitable Trust and derives income from fees, donation and other sources. The original assessment in this case was completed u/s 143(3) of the IT Act, 1961 on 7.3.2006 at net income of Rs. Nil as against the assessee filed its return declaring income Nil on 14/01/2004 after claiming exemption u/s 11 of the IT Act, 1961 of Rs. 94,90,419/ -. A perusal of balance sheet it is observed that the assessee has made addition in corpus of Rs. 11,20,010/ - however no comments have made by the Assessing Officer in his order passed on 07/03/2006. Therefore, this amount has been left to be considered. Meanwhile, a complaint dated 14/02/2009 was received from Mr. Jitendra Kumar alleging that the donations disclosed by the assessee are not genuine donation. He has already worked in Rohilkhand Educational Charitable Trust in the capacity of Joint Treasurer /Member. His statement u/s 131 was recorded on 27/02/2009. In this statement he alleged that the Trust is debiting various expenditure especially salary of Teachers, Doctors which are either not genuine or inflated and Capitation Fees received from students are being shown as a donation. His statement is placed on record from Page No. 96 to 104 (complaint/confidential folder). In view of above details brought on record, the donation of Rs.11,20,010/ - is not genuine and also salary, expenditure of Rs. 10,01,554/ -(5,66,440+4,35,114) debited to Income and Expenditure Statement apart from other expenditure are not genuine to the extent of these expenditures being fictious and inflated as stated in his statement of Shri Jitendra Kumar. Therefore, I have reason to believe that donation of Rs. 11,20,010/ - and expenditure on salary and other expenses to the extent of Rs. 10,01,554/ - are not genuine and same is fictitious expenditure are to be taxed as not being for the purpose of the object of Trust. Since these amounts have escaped assessment, therefore, action u/s 147 of the IT Act, 1961 is initiated and notice u/s 148 issued accordingly, after obtaining approval from Commissioner of Income Tax,Bareilly who has given approval vide his letter F.No. CIT BLY/APPR. U/S 148/RKECT. BLY.2008 -09 dated 24.03.2009 which is placed on file." ;