Ajit Kumar Sengupta, J. - (1.) This appeal by the Revenue is directed against the judgment and order dated March 11, 1993, passed by the court of first instance quashing the notice under Section 148 of the Income-tax Act, 1961, and consequent reassessment, if any, for the assessment year 1973-74. The learned judge, after considering the recorded reasons, came to the conclusion that there was no prima facie evidence at all to show that the assessee has received a higher price than disclosed.
(2.) The reasons which have been recorded by the Income-tax Officer are as follows : "During the assessment year 1973-74, the assessee has sold its land with building at 65, G. T. Road, Howrah, for a consideration of Rs. 2,00,000 as per conveyance deed and disclosed income under the head 'Capital gains' at Rs. 13,000 and the assessment was completed accordingly. But subsequently, it was found on investigation that the market price of the said property was much more than the price shown in the sale deed. Hence, the case was referred to the Departmental valuer for ascertaining the correct and proper valuation of the property. The valuer, in his report dated April 29, 1977, estimated the market value of the property at Rs. 5,92,000 on the date of sale. I have, therefore, reasons to believe that for failure on the part of the assessee to disclose fully and truly all the material facts necessary for its assessment, the income of Rs. 3,79,000 under the head 'Capital gains' has escaped assessment. Hence proceedings under Section 147(a) are initiated. Issue notice under Section 148 and make a note in the Register." Mr. Moitra, the learned advocate appearing for the Revenue, has submitted that after the reopening was made by the notice dated May 9, 1987, under Section 148 of the said Act, the order of reassessment was also passed by the Assessing Officer on March 20, 1982, and, accordingly, the assessee could avail himself of the remedy provided under the said Act. He has drawn our attention to the assessment order where the Income-tax Officer rejected the assessee's contentions regarding the reopening of the assessment under Section 147 of the said Act. According to Mr. Moitra, since the question of jurisdiction has been rightly or wrongly decided by the Income-tax Officer, the remedy lies before the appellate authority under the Act.
(3.) We are unable to accept this contention. It is immaterial whether the Income-tax Officer has rejected the contentions of the assessee on the existence of the jurisdictional facts. He cannot assume jurisdiction by deciding jurisdictional facts wrongly. If the Income-tax Officer did not have any jurisdiction to issue the impugned notice, the writ court can always interfere irrespective of the fact whether the assessment pursuant to such notice has been made or not. If the notice issued under Section 148 of the said Act, which is the condition precedent for making reassessment is quashed, then the reassessment cannot stand and that is why the learned judge after quashing the notice under Section 148 of the said Act also directed that if any assessment order has been passed pursuant to the said notice, the same would also be set aside and quashed. That apart, the assessee also challenged the said order of reassessment in the writ petition. If the notice goes, so also does the order of reassessment.;