SOMESHWARA FARMERS CO OPERATIVE SPINNING MILLS LIMITED Vs. JOINT COMMISSIONER OF INCOME TAX ASSESSMENT

JUDGEMENT

(1.) BY this petition, notice issued under Section 226(3) of the Income-tax Act, 1961, has been assailed. Argument of learned counsel for the petition is two fold.

(2.) FIRST, it is stated that against the order passed under Section 143(1)(a) an appeal was preferred to the appellate authority. The order under Section 143(1)(a) was passed by the assessing authority at Hubli but because of change of place of business, the appeal effect order has been passed by the assessing authority at Belgaum. It is submitted that no notice of demand as contemplated under Section 156 has been issued and as such the recovery proceedings under Section 226(3) could not have been initiated. Reliance is placed on the judgment given in the case of Manmohanlal v. ITO [1987] 168 ITR 616, wherein it was observed by the apex court that the court has jurisdiction to examine and decide as to whether there has been a proper service of demand notice and the direction for payment could be made only if the court is satisfied that the proper notice has been served.

(3.) THE other contention which is raised is regarding the application which is pending before the Commissioner of Income-tax cannot also be considered at this stage. It was for the petitioner to have approached the Tribunal when the second appeal was pending before it. THEre is no restriction in moving the application for stay before the Tribunal even if the application is pending before the Commissioner where the appeal is pending.