SHRI SIRMAD BUDDHISAGAR SURI JAIN SAMADHI MANDIR Vs. ASSISTANT COMMISSIONE OF INCOME TAX PATAN CIRCLE

JUDGEMENT

(1.) THIS petition is taken up for final hearing and disposal today, considering the scope of the controversy and in light of the view that the Court is inclined to adopt. Rule. The learned counsel for the respondent department is directed to waive service.

(2.) THE petitioner, a Public Charitable and Religious Trust, has challenged the notice issued under Section 148 of the Income Tax Act 1961 (The Act) for Assessment Year 2005-2006, issued on 15/2/2008, and consequently Assessment Order made under Section 143 (3) read with Section 148 of the Act on 30/12/2008. It is an admitted fact that the impugned notice dated 15/2/2008 (Exhibit-I) was issued by Income Tax Officer, Patan Ward-III, Mehsana, whereas the Assessment Order has been framed by Assistant Commissioner of Income Tax, Patan Circle, Patan, the respondent herein. Though learned senior counsel appearing on behalf of respondent authority has tendered affidavit-in-reply dated 4/2/2009, the averments made on behalf of the petitioner that the Income Tax Officer had no jurisdiction to issue notice under Section 148 of the Act has not been controverted in the said affidavit. It is true that in the Assessment Order respondent authority has sought to deal with this objection by taking recourse to provisions of section 292b of the Act. However, as the said aspect, namely notice under Section 148 of the Act having been issued by an officer who did not have jurisdiction, is not contested, the petition is required to be allowed on this limited count.

(3.) BEFORE parting, it is necessary to take note of the fact that, despite the law laid down by the Apex Court, and reiterated, and followed by this Court in number of matters, the present petitioner was constrained to approach this Court in an earlier round of proceeding by way of Special Civil Application No. 13955 of 2008, seeking direction qua the respondent authority to supply reasons recorded before proceeding ahead with the proposed assessment. The said reasons recorded by the authority were supplied only after a notice came to be issued by this Court. The approach of the respondent authority, in the circumstances, cannot be condoned, and the attempt to frame an Assessment on the basis of a notice issued without jurisdiction does not commend to the Court. However, without entering into any other discussion in the matter, it would be just and fair if the respondent authority is called upon to bear the costs of this petition, in the circumstances.