- (1.) This appeal has been filed against the judgment and order dated May 8, 2014, passed by the learned single judge in the writ petition, being W.P. No. 281 of 2014 (Zigma Commodities Pvt. Ltd. v. ITO, 2014 365 ITR 276 (Cal)) whereby the same was dismissed. The petitioner had prayed for cancellation of the show-cause notice dated February 3, 2014, issued under section 263 of the Income-tax Act 1961 (for short "the 1961 Act") and also, inter alia, prayed for a writ in the nature of mandamus commanding respondent No. 2 to supply the satisfaction recorded before issuance of the said show-cause notice.
(2.) It appears the learned single judge had granted liberty to the writ petitioner to file supplementary affidavit containing the records disclosed by the Department. Such records revealed, on January 29, 2014, 29 files were received by the Commissioner of Income-tax, Kolkata-II (hereinafter referred to as "the said Commissioner") which contained the record of the assessment proceedings of the writ petitioner. It was also revealed from such records on February 3, 2014, a draft notice under section 263 of the 1961 Act in the petitioner's case was put up for approval of the said Commissioner if found deem fit, perusal, and signature, if approved. It also appears on the same day, i.e., February 3, 2014, the said Commissioner had put his signature thereon as evident from page 100 of the application for stay.
(3.) The learned single judge, after hearing the parties, had dismissed the writ petition by observing, inter alia, as follows (page 283 of 365 ITR) : "The Commissioner received the records prior to the issuance of the show-cause notice and opined that the Assessing Officer failed to apply his mind objectively and failed to conduct an inquiry over the subscription of the shares to various subscribers at a high premium. Section 263 of the Act never envisages the separate recording of the satisfaction before issuance of the show-cause notice but if it is clearly discernible from the facts narrated in the show-cause notice that the order of the Assessing Officer appears to be erroneous and a prejudice is caused to the Revenue, it would render the said show-cause notice legal and valid. The Commissioner has indicated the same sufficiently in the show-cause notice and afforded the opportunity to the petitioner to file reply thereto which, in fact, have been done. Whether the order can sustain on legal parameters or not, can be tested by a higher authority who have been bestowed with the power of appeal. Section 253 of the Act provides a remedy of appeal against an order passed under section 263 of the Act by the Commissioner and, therefore, such remedy is required to be resorted to by the petitioner. This court, therefore, does not find any merit in the writ petition.";