- (1.) IN this writ application the petitioner has challenged the notices dated 5.2.2007 and 16.4.2007 issued by the Assistant Commissioner of Income Tax, Circle 3, Ranchi purported to have been issued under Section 148 and Section 142(1) respectively of the Income Tax Act, 1961 calling upon the petitioner - assessee for filing return.
(2.) PETITIONER is a limited company carrying on business of construction of dam canal, railways, roads etc. In September 2003, petitioner -assessee filed return for the year 2003 -04. Petitioners case is that return so filed was processed under Section 143(1) of the Act and refund voucher of Rs. 20,48,390/ - was issued to the petitioner on the basis of refund order after adjustment of the demand for the assessment year 1997 -98 and the said demand was duly approved by the Assistant Commissioner of Income Tax, Ranchi. However, on 7.2.2007 petitioner received two notices Under Section 148 of the Act issued by the Assistant Commissioner of Income Tax, Circle -I, Ranchi for reopening of the assessment for the assessment year 2003 -04 asking the petitioner to file return in the prescribed form. Petitioner said to have filed protest petition against the said notice and applied for certified copy of the entire order -sheet and administrative direction on the basis of which purported notice was issued. Petitioner also received another notice under Section 147 of the act for re - opening of the assessment for the assessment year 2003 -04. Mr. B. Poddar, learned senior counsel appearing for the petitioner submitted that initiation of proceeding under Section 147 of the Act is illegal, mollified and arbitrary. Learned Counsel submitted that original assessment order was completed after considering all the materials on record and therefore, initiation of proceeding by mere change of opinion is illegal and without jurisdiction. Learned Counsel further submitted that there is no provision in the Act empowering the Commissioner to review the completed assessment of an assessee and observation made by the Commissioner in his letter dated 10.1.2007 are based upon the same materials which were available at the time of original assessment and the same is not based upon any new materials. Learned Counsel further submitted that the Assessing Officer while issuing notice has not recorded satisfaction of the escapement of income as required Under Section 147 of the Act but he acted only on the basis of the observation made by the Commissioner of Income Tax.
(3.) RESPONDENTS in their counter affidavit have stated inter alia that after the impugned notices were issued the petitioner -assessee was supplied reasons for issuance of notice but no objection was filed before the Assessing Officer rather petitioner approached this Court directly by filing instant application. It is further stated that no direction was issued by the Commissioner of Income Tax to the Assessing Officer to initiate proceeding under Section 147 of the Act. In fact letter was issued by the Commissioner of Income Tax, Ranchi wherein he made certain observations on the return of income filed by the petitioner, which indicate escapement of income. The Additional Commissioner after receiving the aforesaid letter forwarded the same to the Assessing Officer seeking requisite information in respect of the observation made by the Commissioner. Respondents further case is that by the letter of the Commissioner certain facts were brought to the notice of the Assessing Officer for necessary action at his end. After going through the observation of the Commissioner of Income Tax, the Assessing Officer became satisfied that the case requires reopening for making correct assessment. Consequently, the impugned notices were issued. ;