- (1.) By means of the present writ petition filed under Article 226 of the Constitution of India, the petitioner, M/s S.K. Gupta & Company, through its partner, Sri S.K. Gupta, seek a writ, order or direction in the nature of certiorari quashing the notice dated 15.3.1999 issued by the Income Tax Officer, Ward I, Ghaziabad, the sole respondent, filed as Annexure 4 to the writ petition, as also for quashing the entire proceeding taken in pursuance of the notice under Section 148 of the Income Tax Act, 1961 ((hereinafter referred to as "the Act") for the assessment year 1988-89.
(2.) Briefly stated, the facts giving rise to the present petition are as follows: According to the petitioner, it is a registered partnership firm. It is a contractor and is engaged in the business of construction for the Ghaziabad Development Authority, Ghaziabad. For the assessment year 1988-89, it has filed its return of income on 30.3.1989 under Section 139 of the Act declaring the income at Rs. 1,01,070/- The respondent issued notice under Section 143(2) of the Act calling upon the petitioner to furnish certain information for the purpose of making the assessment. The assessment order under Section 143(3) of the Act was passed by him on 27.3.1991. However, the assessment was made in the status of Association of Person (AOP). The petitioner preferred an appeal before the Commissioner of Income Tax (Appeals), Muzaffarnagar who, vide order dated 18.12.1991, had allowed the appeal in part and granted substantial relief. Still feeling aggrieved, the petitioner preferred a further appeal before the Income Tax Appellate Tribunal, New Delhi, which, vide order dated 1.4.1998, had held that the assessment order passed by the respondent was invalid and accordingly quashed the order dated 27.3.1991. The respondent had issued a notice dated 15.3.1999, purporting to be under Section 148 of the Act, for the assessment year 1988-89. The petitioner had filed its return of income under protest on 7.4.1999 declaring the same income. It also requested for communicating the reasons recorded for initiation of the proceeding under Section 148 of the Act. The notice issued under Section 148 of the Act is under challenge in the present case on the ground that there had been no escapement of income assessment as the return filed on 30.3.1989 is still pending and has not yet been disposed of culminating in the final assessment. Further, there had been no omission or failure on the part of the petitioner to file the return or to disclose truly and fully all material fact for the assessment year 1988-89. The proceedings are barred by limitation also as a period of 8 years had expired.
(3.) In the counter affidavit filed by Sri H.N.Thakur, Income Tax Inspector, posted with the Income Tax Officer, Ward I, Ghaziabad, respondent, it has been stated that while passing the assessment order on 27.3.1991, due to mistake, the status was mentioned as AOP instead of URF and the same has been corrected on 22.4.1991 while exercising the power under Section 154 of the Act. No appeal has been preferred against the rectification order dated 27.4.1991. Reasons have been recorded by the respondent, which shows that the petitioner had not declared the investment of FDR amounting to Rs.1,15000/- while filing the return. The Department has preferred a reference application against the order passed by the Income Tax Appellate Tribunal dated 21.4.1998. The proceedings have been validly initiated and merely because the original return stands undisposed of, would not prohibit the initiation of re-assessment proceeding.;