Amitava Lala, J. - (1.) This writ petition has been made challenging the show-cause notice under Section 263 of the Income-tax Act, 1961, for the assessment year 1985-86 issued by the Commissioner of Income-tax, Central-I, Calcutta, dated March 6, 1990. It appears that the original order of assessment has been merged with the appeal proceeded before the Commissioner of Income-tax (Appeals)/Appellate Commissioner of Income-tax and if such order is merged with the order of the appellate authority, the show-cause notice issued by the Commissioner of Income-tax, Central-1, Calcutta, cannot exist superseding the authority of the Appellate Commissioner of Income-tax.
(2.) Learned counsel for the income-tax authority has no other alternative but to concede to this point since the same is available under the Explanation as given in Section 263 of the Income-tax Act, 1961, itself. Therefore, the order is not a valid one in law and cannot be sustained. Hence, the same should set aside.
(3.) In respect of the three points on which the show-cause notice under Section 263 of the Income-tax Act, was issued, learned counsel for the petitioner submits that the first point is hit by the ratio on the judgment of the Division Bench of this court that the commission on sale cannot be held to be sale promotion as reported in CIT v. Bata India Ltd. [1993] 201 ITR 884. So far as the second point is concerned, he contended that the order is available retrospectively in view of the amendment of Section 32A of the Income-tax Act, on the basis of the modification of conditions for grant of development rebate and investment allowance as per [1990] 182 ITR (St.) 222, read with page 336-337. In respect of point three, he contended that the factual parameter on which the paragraph 15 clearly states that this meagre amount was spent for the purpose of running of a school within the vicinity of the mills run by a public charitable trust. Therefore, the amount is not a donation. No affidavit has been filed by the respondents. That apart the ratio of the judgment as reported in B. P. Agarwalla and Sons Ltd. v. CIT, it is stated that the jurisdiction of this court under Article 226 to entertain the show-cause notice under Section 263 of the Income-tax Act, 1961, is only upon the following circumstances and this case is falling within the same as provided therein (head-note) : "1. When the show-cause notice ex facie or on the basis of admitted facts does not disclose the offence alleged to be committed. 2. When the show-cause notice is otherwise without jurisdiction. 3. When the show-cause notice suffers from an incurable infirmity. 4. When the show-cause notice is contrary to judicial decision or decision of the Tribunal. 5. When there is no material justifying the issuance of the show-cause notice".;