JAGNESWAR DEY AND BIBHASH RANJAN DEY Vs. INCOME TAX OFFICER

JUDGEMENT

(1.) UPON hearing learned counsel on both the sides, it appears to me that the writ petitioner, namely, Jagneswar Dey and Bibhash Ranjan Dey, P. O. Haflong, District : N. C. Hills, made a prayer in this writ petition for a direction to respondent No. 1, namely, the Income-tax Officer, A Ward, Silchar, Cachar, Assam, to cancel, withdraw or forbear from giving effect to the impugned notice/order dated March 4, 1992, as in annexure-I to the writ petition and to quash the entire proceedings made under Section 148 of the Income-tax Act, 1961, by contending, inter alia, that the petitioner-firm is a dealer of petrol, diesel, super kerosene oil and lubricants and the same are supplied by the Indian Oil Corporation, Digboi, from its various depots ; and that the firm has been assessed to income-tax under Section 143 since the assessment years 1973-74 to 1987-88 as per the provisions of law laid down under Section 143 which was in force till its amendment came into force on and from April 1, 1989 ; and that the petitioner firm had submitted its return for the assessment year 1981-82 on September 30, 1981, and has been assessed to income-tax by the Income-tax Officer, A-Ward, Silchar, vide his order dated September 8, 1983, under Section 143 of the Income-tax Act and, accordingly, the petitioner paid the taxes and there was no further demand. According to the writ petitioner, the concerned Income-tax Officer without complying with the mandatory provisions of law laid down under Section 151 of the Income-tax Act, 1961, which is hereinafter referred to as "Act", which is applicable in the case of prior amendment which came into force on and from April 1, 1989, issued the impugned notice/order dated March 4, 1992, as annexure-I to the writ petition. It is also the case of the writ petitioner that as the firm/petitioner has been assessed for income-tax since the assessment years 1973-74 to 1987-88 as per related provisions of law laid down under Section 143 which was in force till its amendment came into force as stated above, the impugned notice cannot be issued and as such the impugned order/notice is violatiye of all the related provisions of law contemplated under the Act. According to the writ petitioner, the Income-tax Officer had issued the impugned notice/order for the assessment year 1981-82 most illegally realising the alleged fact that the peak credit of Rs.3,54,385 selected for the assessment year 1983-84 includes earlier years' liabilities amounting to Rs. 2,51,356 which is not legally assessable in the assessment year 1983-84 for which the writ petitioner has also preferred another writ petition being Civil Rules Nos. 223 of 1992 and 224 of 1992 before this court and the same were disposed of by the related order of February 7, 1992. According to the writ petitioner, the concerned Income-tax Officer most arbitrarily completed the assessment for the assessment year 1983-84 summarily under Section 144/147 of the Act, vide order dated March 30, 1992, and had raised a huge demand and has started the penal proceeding against the petitioner. Being dissatisfied with the assessment, the writ petitioner has filed a separate writ petition as against the assessment order made by the competent authority in respect of the related assessment year 1983-84 before this court.

(2.) THE contesting respondents resisted the case of the writ petitioner by filing counter-affidavit contending, inter alia, that the related notice under Section 148 of the Act dated March 4, 1992, is a valid notice issued for the purpose of calling for the return of the assessment year 1981-82 in the case of the assessee, Jagneswar Dey and Bibhash Ranjan Dey, Haflong, and that the Income-tax Officer concerned had complied with the mandatory provisions of law laid down under the Act while issuing the impugned notice/order and as such the impugned notice/order was issued within the jurisdiction of the competent authority. THE contesting respondents went on to contend that the concerned Income-tax Officer obtained sanction from the appropriate authority as required under the related provisions of law laid down under Section 147(1)(b)(iii) of the Act and as such the statement and the allegations so far made by the writ petitioner are not correct and not sustainable in the eye of law.

(3.) NOW, this court is to examine as to whether the present writ petitioner has an enforceable right in the instant case and whether the impugned notice/order dated March 4, 1992, annexure-I to the writ petition deserves to be set aside and quashed or not.