R.K.Agrawal, J. - (1.) The applicantsArun Kumar Maheshwari and Amit Kumar Maheshwariby means of Civil Miscellaneous Writ Petition No. 538 of 2001 and Civil Miscellaneous Writ Petition No. 539 of 2001 (see [2006] 284 ITR 642), respectively, filed under Article 226 of the Constitution of India had challenged the validity of the separate notice dated March 15, 2001, issued under Section 148 of the Income-tax Act, 1961 (hereinafter referred to as "the Act"), for the assessment year 1995-96 on the ground that the said notice is absolutely illegal, arbitrary and had been issued only on account of change of opinion and there was no material on the basis of which a sum of Rs. 14 lakh and Rs. 19.60 lakhs, respectively, can be said to be the income of the applicants on the basis of which an opinion can be formed about the escaped assessment. The writ petition was heard along with two other writ petitions involving similar issues and was dismissed vide a common judgment and order dated December 3, 2004 (see [2006] 284 ITR 642). The court had held that there was relevant material before the Income-tax Officer to form the reasonable relief that the income had escaped assessment. The challenge to the validity of the notice issued under Section 148 of the Act was repelled by the court. Both the applicants challenged the judgment and order dated December 3, 2004 (see [2006] 284 ITR 642) passed by this Court before the hon'ble apex court by filing petitions for Special Leave to Appeal (Civil No. 6712-6713 of 2005) which came up for consideration before the hon'ble apex court on April 11, 2005. The applicants sought permission to withdraw the special leave petition, which was granted. The apex court has passed the following order: Learned senior counsel appearing for the petitioner, inter alia, submits that under Section 151 of the Income-tax Act the assessment if to be reopened then the same can be done only after the permission is obtained from the Chief Commissioner which has not been done in these cases. He also submits that the reopening can only be done by an officer not below the rank of Joint Commissioner. From the impugned judgment we do not find that this issue has been raised before the Tribunal. However, learned senior counsel points out from the grounds of the SLP that such grounds have been raised but not reflected in the judgment. If that be so, the appropriate remedy for the petitioners is to approach the High Court by way of review petition to point out these deficiencies. learned Counsel seeks permission to withdraw these petitions. Prayer is granted. The special leave petitions are dismissed as withdrawn.
(2.) Thereafter, both the applicants had filed separate applications seeking review of the judgment and order dated December 3, 2004 (see [2006] 284 ITR 642) along with an application seeking condonation of delay in filing the review application. The review applications have been filed on the following grounds: (i) Section 151(2) of the Act mandates that no notice shall be issued under Section 148 of the Act by the Assessing Officer who is below the rank of a Joint Commissioner after the expiry of four years from the end of the relevant assessment year unless the Joint Commissioner is satisfied on the reasons recorded by the said Assessing Officer that it is a fit case for issue of such notice ; (ii) Since the Assessing Officer was not in the rank of a Joint Commissioner, it was imperative for the Assessing Officer to have first obtained the sanction from the Joint Commissioner prior to issue of a notice for reassessment. A bare perusal of the notice for reassessment as well as the reason for reopening of the assessment would show that no satisfaction was recorded by any Joint Commissioner prior to the issue of notice by the Assessing Officer for reassessment. Thus, the entire proceeding for reassessment was without jurisdiction ; and (iii) The aforesaid points were raised before this Court at the time of hearing of the writ petition by senior counsel, Sri V. B. Upadhaya and the fact is also highlighted in paragraphs 3(a) and (b) of the rejoinder affidavit which issues of jurisdiction were un adjudicated by this Court.
(3.) In the counter affidavit filed by Sri Subhash Chandra Saxena, Income-tax Inspector, Ward I, Income-tax Officer, Bijnor, it has been stated that the petitioner's counsel did not raise the plea of jurisdiction before this Court and it is not open to him to raise this plea from the back door in a review application.;