GANGADHAR BERA Vs. ASSISTANT COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) This writ petition is directed against a notice dated October 21, 2002, admittedly issued under Section 143(2) of the Income-tax Act, 1961 (hereinafter referred to as the said Act). I think the text of the notice must be incorporated hereunder :

(2.) At the top of the aforesaid impugned notice, "section 143(2) of the Income-tax Act, 1961" has been mentioned. This notice was issued on October 21, 2002. On receipt of this notice, the assessee/petitioner objected to the same taking a legal point that the notice is bad and invalid as it does not mention clause of the said sub-section, namely, whether Clause (i) or Clause (ii). As such this notice should be withdrawn. The Assessing Officer replied to the objection of the petitioner and clarified by a letter dated November 17, 2002, contending that the aforesaid notice was issued or intended to be issued under Section 143(2), Clause (ii). This clarificatory notice came after slightly over twelve months from the end of the month in which the return was furnished. On the aforesaid factual aspect, Mr. R. Bharadwaj, the learned advocate, led by Mr. Mihirlal Bhattacharyya, learned senior counsel, contends that the said notice is bad in law as such this was clarified by subsequent notice as above. However, this clarification came at a certain point of time when the time limit for issuance of valid and lawful notice has expired as by the proviso to the said section the time limit is mentioned as twelve months, for issuance of this notice and on the expiry of this period the Assessing Officer has no jurisdiction to issue any such notice. Therefore, the subsequent clarificatory notice is bad, invalid and of no assistance.

(3.) In support of his contention, he has drawn my attention to the aforesaid proviso which reads as follows :