Susanta Chatterji, J. - (1.) The present Rule was issued on 7.10.77 at the instance of the writ petitioner Messrs. Asian Industries, a registered firm praying inter alia for issuance of a Writ of Mandamus commanding the respondents to cancel, withdraw and/or rescind the notices dated 6th of June, 1977 dated, 20th September, 1977 and 30th September, 1977 issued by the respondent No.1, Inspecting Assistant Commissioner of Income Tax, Range-XX, Calcutta and all proceedings under section 144B of the Act relating to the Assessment Year 1975-76 and for other consequential reliefs on the ground that section 144B of the Act in so far as it authorises the Inspecting Assistant Commissioner of Income-tax to give directions in matters of assessments which are binding upon the Income Tax Officer is violative of Articles 14 and 19(1) (f) & (g) of the Constitution of India and as such is ultra vires. It is asserted that section 144B of the Income Tax in so far as it confers power upon the Inspecting Assistant Commissioner of Income Tax to give directions which are binding upon the Income Tax Officer in matters of assessment and in view of the further fact that no appeal lies against the said directions of the Inspecting Assistant Commissioner of Income Tax. The appeal provided under section 246 of the Act against the order of assessment is rendered infructuous and the petitioner has no statutory right of appeal against such directions and in this circumstances the said provision is violative of the constitutional safeguards. It is stated that the respondent No.1 has no jurisdiction and/or authority to issue the impugned notice dated, 30th of September, 1977 with a view to include the sum of Rs. 9.5 lacs in the draft assessment and give direction in respect thereof in view of the fact that the sum of Rs. 9.5 lacs has not been treated as the income of the petitioner in the draft assessment forwarded to the Inspecting Assistant Commissioner of Income Tax or is the said sum covered by the objections filed by the petitioner. It is alleged in details by the writ petitioner that on 27th January, 1916, the petitioner duly filed the return for the assessment year 1975-76 showing the income If Rs. 53,036/-. In pursuance of the notice issued by the respondent No. 2, the Income Tax Officer, 'A'-Ward, District-XI (I) one of the partners of the petitioner firm accompanies by an authorised Advocate appeared before the said Income Tax Officer and produced all the books of accounts and documents which were duly examined. There was, however, a search and seizure of certain books of accounts on the month of December, 1974 conducted by the Income Tax Department and in course of the assessment proceedings the Income Tax Officer went through the said note book and other seized books of accounts. As the total income exceeded of Rs. 1 lac the respondent No.2 forwarded to the petitioner a draft assessment order dated, 4th of May, 1977 under section 144B of the Act. By a letter dated, 10th of May, 1977, the petitioner filed an objection and in the said objection, the petitioner disputed the estimated addition of Rs. 5,000/- in the re-rolling account and the disallowance of the sundry expenses. On 30th September, 1977, the petitioner duly appeared before the respondent No.1 through the petitioner's authorised representative when notice dated, 30th September, 1977 was handed over. It has been placed on record that according to the respondent No.1 the cash credits recorded in the seized books roughly comes to Rs. 9.5 lacs. By the said notice, the respondent No. 1 requested the petitioner to explain as to why the said amount of Rs. 9.5 lacs should not be treated as concealed income of the petitioner. According to the petitioner, the provisions of section 144B of the said Act are ultra vires Article 14 of the Constitution of India inasmuch as under the said provisions assesses and/or persons similarly situated and similarly circumstanced have been discriminated and treated differently. Much emphasis is laid to the fact that there was no rational classification in section 144B of the said Act and no proper guideline have been issued there under from making proper classification and for the purpose of applying the provisions of section 144B of the said Act to a particular assessee to a class of assessee or to a particular class of income group. Dr. Pal appearing for the writ petitioner has strongly submitted that the Income Tax Officer, for the Assessment Year 1975-76 had made a draft order of assessment under section 144B(3) read with section 144B of the Income Tax Act. In the said draft order the Income Tax Officer considered the fact that as a result of certain search conducted on 9th December, 1984 it appeared to him that total sales were not accounted for in the regular books of accounts amounting to Rs. 10,50,000/-. He also pointed out that besides the said unaccounted sales there were also cash credit of Rs. 9,66,000/- credited on different dates. The Income Tax Officer called for the explanation regarding the aforesaid cash credits and the assessee gave explanation that it had issued cheques on various dates to the various parties whose names are there in the seized books and in view of the cheques, cash to the extent of Rs. 9,66,000/- had been received and credited. The Inspecting Assistant Commissioner of Income Tax however, issued a notice under section 144B of the said Act to the assessee and fixed a date of hearing on the 27th of June, 1977. The said date was alleged to have been adjourned on 30th September, 1977. On the said date, the Inspecting Assistant Commissioner of Income Tax allegedly issued the impugned notice by which he wanted to treat the sum of Rs. 9,50,000/- as the concealed income of the assessee firm and gave a show cause notice to the assessee for this purpose.
(2.) Dr. Pal has brought to the notice of the Court that on a reading of the provision of section 144B it is clear that the Inspecting Assistant Commissioner of Income Tax while giving a direction under section 144B (4) of the Act has no competence, jurisdiction and/or authority to travel beyond the objections raised by the assessee in respect of the draft order of assessment. The Inspecting Assistant Commissioner of Income Tax under section 144B(4) of the Act cannot issue any direction in respect of the items not covered by the draft order of assessment and any such direction would be invalid to the extent that is not covered by the draft assessment order. The attention of the Court has been drawn to a case reported in 142 ITR Page 156 and at Page 170. He has also argued that even assuming and by not admitting that the purported notice under section 144B of the Act is to be treated as a notice under section 144A of the Act in that event, it has to be considered that it is not the case of the Revenue Authorities that the notice dated 30th September, 1977 has been issued under section 144A of the Act. In fact, the letters issued by the Inspecting Assistant Commissioner of Income Tax on 6th June, 1977 fixing the date of hearing and the subsequent letter dated, 20th September, 1977 adjourning the hearing to 30th September, 1977 clearly show that the proceedings were taken and/or continued under section 144B(4) of the Act. In this circumstances, it is not open to the Revenue Authorities to take the plea that the purported notice dated 30th September, 1977 is to be treated as one under section 144A of the Act. Even if the said notice is taken as one for the purpose of 144A of the Act. In that event, section 144A of the Act cannot have any application in the present case. In view of the fact that the Income Tax Officer has exercised its power under section 144B of the Act and has made the draft order of assessment and has forwarded to the same to the Inspecting Assistant Commissioner under section 144B of the Act. He has argued further that under the Scheme of 144B to the Act, the Income Tax Officer can make one draft order assessment and sending it to the Inspecting Assisting Commissioner under section 144B of the Act with the occasion raised by the Assessee in respect of such draft order of assessment. He has also drawn the attention the Court to the case reported in 128 ITR, Page 445. According to Dr. Pal even assuming that more than one draft order is permissible, the Inspecting Assistant Commissioner will have to hear the objections raised by the assessee in respect of the second draft order of assessment. Second draft order of assessment has been made in pursuance of the directions given by the Inspecting Assistant Commissioner of Income Tax under section 144A of the Act. In such a case, the said Inspecting Assistant Commissioner who has given a direction for treating the amount of Rs. 9,50,000/- as income will now bear the objection of the assessee under section 144B (4) of the Act will be rendered into an idle formality. If the same Officer has already made up his mind and has issued the direction under section 144A of the Act is now to hear the objection regarding the draft order of assessment which has been made in pursuance of his own direction under section 144A of the Act. He has tried to explain the decision of the Kerala High Court reported in 172 ITR Page 604 ( Commissioner of Income Tax vs. M. Krishnan) pointing inter alia that the said decision has not considered at all as to whether when draft order of assessment has been made by the Income Tax Officer under section 144B of the Act and the objections of the said draft order of assessment are before the Inspecting Assistant Commissioner for hearing under section 144B(4) of the Act, the assessment is not at all pending before the Income Tax Officer and hence the Inspecting Assistant Commissioner cannot exercise again his power under section 144A of the Act. The said decision on the other hand is decided the question only as to whether the period of limitation prescribed under section 153(1) (a) (iii) of the Act is extended by reason of explanation 1 (iv) to that section as submitted. As soon as the draft order under section 144B of the said Act is forwarded to the assessee by the Income Tax Officer the assessment is open to be dealt with during the extended period in accordance with law. The said case is, therefore, only decided the question of limitation and the point on which the reference was made to the High Court with regard to the bar of limitation.
(3.) Mr. Prasad appearing on behalf of the Revenue has strongly urged that point for consideration is that having regard to under section 144A read with section 144B of the Act I.A.C. can vary the addition as made, by the I.T.O. while referring the case under section 144B of the Act. It is submitted that the provision of section 144B and section 144A are complimentary and not exclusive. Having regard to section 144B (4) of the Act it will appear that correct view would be that enhancement of the assessment as a result of direction issued by the I.A.C. under section 144B of the Act on the terms not covered by the draft assessment order would be invalid to the extent, it was not covered by the draft.;