SOUMITRA PAL, J. - (1.) SUBHASH Chandra Bhaniramka, the writ petitioner, has challenged the notice dt. 31st Aug., 2007 under Section 158BD of the IT Act, 1961 (in short 'the Act') issued by the Asstt. CIT, Circle -38 Kolkata, the respondent No. 1. The facts, as stated in the petition, in brief are that the Asstt. CIT, Central Circle XXIII, Kolkata, respondent No. 2, by a notice dt. 18th Aug., 2005 requested the petitioner to prepare a true and correct return of total income including the undisclosed income in the status of a company for the block period from 1st April, 1996 to 28th Oct., 2002 under Section 158BD(a) of the Act. Accordingly, on 7th Nov., 2005 as he is assessed as an individual, the petitioner filed the return in the said status. By notice dt. 5th July, 2006 the respondent No. 2 requested the petitioner to attend before the respondent No. 2 regarding the return filed, which he attended. In continuation thereof, a notice dt. 31st July, 2007 was issued calling upon the petitioner to appear on 6th Aug., 2007, which he complied with. However, the respondent No. 2 by letter dt. 3rd Aug., 2007 intimated that since jurisdiction was with the respondent No. 1, proceedings initiated under Section 158BD of the Act on 18th Aug., 2005 had been dropped. Thereafter, the petitioner received the impugned notice dt. 31st Aug., 2007 under Section 158BD of the Act issued by the respondent No. 1 requesting him to file a return of the total income including undisclosed income in the status of a company for the same block period as mentioned in the notice dt. 18th Aug., 2005. By letter dt. 10th Dec, 2007, the petitioner requested the respondent No. 1 to furnish a certified copy of the satisfaction required for issuing the impugned notice under Section 158BD which was allegedly not furnished. Aggrieved, this writ petition was filed. At the time of moving the writ petition directions were issued for filing of affidavits. Affidavits have since been exchanged and are on record.
(2.) THE learned advocate appearing for the petitioner reiterating the statements in the writ petition submitted that the entire exercise of the respondents culminating in the issuance of notice on 31st Aug., 2007 is without jurisdiction and illegal. Not only the status mentioned in the impugned notice is incorrect, the satisfaction recorded as evident from the affidavit in opposition is not subjective. Assuming the satisfaction recorded by the respondent No. 2 is proper, the respondent No. 1 has to record his independent satisfaction. Once pursuant to the notice dt. 18th Aug., 2005 return was filed, it was incumbent upon the respondent No. 1 to pass an order on the return. Moreover, the respondent No. 2, as evident from the letter dt. 3rd Aug., 2007, cannot decide and confer and transfer jurisdiction on the respondent No. 1. Transfer, if at all, has to be made in compliance with the provisions of Section 127 of the Act. In brief, it was submitted since none of the conditions under Section 158BD were fulfilled, the proceedings are invalid. During argument documents were furnished, which are on record, to show that the jurisdiction still vests with the respondent No. 2 as evident from the notices dt. 23rd Oct., 2007 and 25th June, 2008 for the asst. yrs. 2005 -06 and 2006 -07 respectively. The learned advocate relied on the following judgments in support of his submissions which are as under: 1. Mohinder Singh Gill and Anr. v. Chief Election Commissioner and Ors. : AIR 1978 SC 851; 2. Manish Maheshwari v. Asstt. CIT and Anr. : (2007) 208 CTR (SC) 97 : (2007) 289 ITR 341 (SC); Cit v. Ved and Co. (2007) 209 CTR (Del) 455 : (2008) 302 ITR 328 ;
(3.) HYNOUP Food and Oil Industries Ltd. v. Asstt. CIT : (2008) 219 CTR (Guj) 124 : (2008) 307 ITR 115 (Guj);;