Debangsu Basak, J. - (1.) The petitioner has assailed a notice dated April 20, 2011 issued under Section 148 of the Income Tax Act, 1961 for initiating proceedings under Section 147 of the Act of 1961 in respect of assessment year 2007 -2008.
(2.) Learned Senior Advocate for the petitioner has submitted, the reasons disclosed by the authorities for invoking Section 147 of the Act of 1961, are specious. It is in the nature of the assessing officer reviewing an order of assessment. Review of an order of assessment by the assessing officer is not permissible under Section 147 of the Act of 1961. He submits that, the assessing officer is not entitled to change his views from that expressed in the order of assessment under Section 147 of the Act, 1961. The petitioner, as employer had time to deposit of employees' portion of the Provident Fund within the time limit for the purpose of filing the Income Tax Return. Such due date has been fixed with retrospective effect by incorporating necessary amendments in Section 43 (B) of the Income Tax Act, 1961. In the month of June, 2006, there was about 20 days' so called delay in payment. The payment was made within the time limit for filing the Income Tax Return. Therefore, such payment was made within due date permitting the petitioner to claim allowance under Section 43(B) of the Act, 1961. The Assessing Officer had such material before him while passing the order of assessment. It is not a case of suppression of material fact by the petitioner. It is also not a case where, the department has received new materials to suggest that, income has escaped assessment. He submits that, the petitioner had replied the notice under Section 148 of the Act, 1961. Such objection was disposed of by a writing dated January 11, 2013. Such writing refers to the tax audit report which was available to the assessing officer at the time of passing the order of assessment. No query with regard to the alleged default under Section 43(b) of the Act, 1961 was raised by the assessing officer. Therefore, the assessing officer did not have the requisite jurisdictional fact before it to invoke the provisions of section 147 of the Act of 1961. He has relied upon (Commissioner of Income-Tax & Anr. v. Sabari Enterprises, 2008 298 ITR 141 (Karn)), (Commissioner of Income-Tax v. Kelvinator of India Ltd., 2010 320 ITR 561 (SC), (Commissioner of Income Tax, Circle-I, Kolkata v. M/s. Vijay Shree Limited,2014 43 Taxman.com 396 (Cal)) and (Commissioner of Income-Tax v. Alom Extrusions Ltd., 2009 319 ITR 306 (SC)) in support of his contentions.
(3.) Learned Advocate appearing for the revenue has submitted that, the department has given reasons for invoking the provisions of section 147 of the Act of 1961. There is a delay in payment of the employee's portion of the Provident Fund by the petitioner. The delay in payment disentitles the petitioner from claiming allowance under Section 43 (B) of the Act, 1961. This aspect of the assessment was overlooked by the assessing officer bona fide. Therefore, the assessing officer was within his rights to invoke Section 147 of the Act of 1961 since, income assessable to tax had escaped assessment. Moreover, the petitioner was aggrieved by the order of assessment and had carried an appeal with regard thereto. Consequently, he submits that there is no infirmity in the impugned order warranting the Writ Court to intervene.;