KESHAB NARAYAN BANERJEE Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) In this writ petition, the petitioner has challenged a notice contained in annexure E to the writ petition at page 57. The said notice was issued under Section 263 of the Income-tax Act, 1961. Learned counsel on behalf of the petitioner contends that Section 263 applies only in respect of an assessment made by the Income-tax Officer. But it does not apply to any other order which is not related to an assessment and is carried on by an authority other than the Income-tax Officer. He then contends that Section 132(5) empowers such officers who are above Income-tax Officers and that under Sub-section (11) of Section 132 appeal is provided. In the present case, before Section 263 was resorted to, an appeal was already preferred. Therefore, until the appeal is decided, Section 263 cannot be resorted to. He then contends that Section 263 cannot be resorted to during the pendency of a proceeding under Section 132, Sub-section (11). Therefore, the said notice should be quashed.

(2.) Learned counsel for the respondents-income-tax authority, on the other hand, contends that the expression used in Section 263 is clear and unambiguous. It does not qualify any proceedings. On the other hand, it provides that power can be exercised by the Commissioner in respect of any proceedings under the Act. The reference to the Income-tax Officer mentioned in the said provision relates to the income-tax authority as mentioned in Section 117 of the said Act which includes all authorities including the Income-tax Officer. Section 263 relates to revision of assessment. Under Section 132(5) the authorities empowered under Section 132 is supposed to make an assessment. For the purpose of Section 263 he is the Assessing Officer assessing the undisclosed income. Therefore, the application of Section 263 cannot be excluded in a proceeding under Section 132(5).

(3.) He then contends that the pendency of the proceeding under Sub-section (11) of Section 132 is not a bar to exercise of jurisdiction under Section 263. Both can be proceeded with together. Over and above, he submits that even if Section 263 is resorted to, the assessee is given an opportunity, in which he can very well raise his objection as was raised in his application under Sub-section (11). Therefore, the petitioner will not suffer any prejudice, His last contention is that the petitioner has come at a stage when the notice was issued. Therefore, the writ petition was premature and as such the same should be dismissed and all interim orders should be discharged.