INDER NARAYAN JHALANI Vs. UNION OF INDIA

JUDGEMENT

(1.) BY filing this writ under article 226/227 of the Constitution of India, the petitioner seeks to assail the notice dated August 23, 1994 (annexure A/1), issued under Section 148 of the Income-tax Act, 1961 (for brevity called "the Act") by the Income-tax Officer, respondent No. 2. The facts of the case lie in a narrow compass. They need mention to appreciate the issue involved and urged.

(2.) THE petitioner is an assessee, as defined under Section 2(7) of the Act. He is assessed as an individual in respect of his income earned from business as also from other sources. THE petitioner filed his return (annexure A) for the assessment year 1992-93, i.e., for the period April 1,1991 to March 31,1992. In the return, the petitioner claimed several deductions such as under Sections 80L, 80CCB, 80CCA, 80HHC and 80D in addition to other claims. THE Assessing Officer processed the return of the petitioner under Section 143(l)(a) ibid and made prima facie adjustment in so far as the deduction claimed by the petitioner under Section 80HHC ibid was concerned by his order dated April 6, 1993 (annexure B at page 12 of the petition). THE petitioner then on receipt of the said order felt aggrieved by the said adjustment and sought its rectification under Section 154 of the Act. THE Assessing Officer rejected the application seeking rectification by his order dated July 19, 1993 (annexure D). THE petitioner then filed an appeal to the Commissioner of Income-tax (Appeals). By order dated April 12, 1994, the Commissioner of Income-tax (Appeals) allowed the appeal and set aside the order of the Assessing Officer, by which he had made prima facie adjustment. THE Revenue then felt aggrieved by the order passed by the Commissioner of Income-tax (Appeals) and filed a second appeal to the Tribunal. THE Tribunal (the I. T. A. T.) dismissed the appeal and upheld the order of the Commissioner of Income-tax (Appeals). THE Revenue then sought reference under Section 256(1) ibid to this court which having been declined by the Tribunal the Revenue came to the High Court under Section 256(2) of the Act. It is now pending.

(3.) THE submission of learned counsel for the petitioner was that once the prima facie adjustment made in Section 143(1)(a) of the Act by the Assessing Officer in relation to deductions under Section 80HHC are held to be bad right up to the Tribunal, then, in such circumstance, no notice under Section 147/148 ibid for the same cause could be issued by the Assessing Officer. In other words, the submission was when the issue in question for which the ' impugned notice is sent was debated in Section 143(1)(a) proceedings and the same having been decided in favour of the assessee (petitioner) by the Commissioner of Income-tax (Appeals) and then by the Tribunal, then the same issue cannot be raised by the Assessing Officer again by sending notice under Section 148 ibid. It is essentially this submission which was pressed into service by learned counsel for the petitioner in assailing the legality and propriety of the impugned notice.