GANGADHAR BERA Vs. ASSISTANT COMMISSIONER OF INCOME-TAX

JUDGEMENT

(1.) THE appellant -assessee was served with a notice under Section 143(2) of the Income -tax Act, 1961 on October 21, 2002, appearing at page 20 of the paper book, inter alia, asking him to appear before the Assessing Officer. The said notice did not, however, indicate whether the same was under (i) or (ii) as by the time the notice was issued Section 143(2) had undergone an amendment by incorporating (i) and (ii). The assessee raised his objection and contended that the notice was vague and asked the authority to issue 'proper notice'. The authority immediately reacted by issuing a letter dated November 12, 2002, appearing at page 27 of the paper book by clarifying that the said notice should be read as a notice under Section 143(2)(ii). The assessee then contended that such notice was barred by limitation as the 12 -month period was over by the time the second letter reached the assessee. There was correspondence exchanged between the assessee and the Assessing Officer. Ultimately, the Assessing Officer decided to proceed with the matter and asked the assessee to appear before him. The assessee then prayed for an adjournment on the ground of ill -health. Such letter of adjournment was sent on February 15, 2003. The Assessing Officer granted adjournment. When the subsequent notice came on September 9, 2003, the assessee again prayed for adjournment on the ground that his advocate became sick. On September 16, 2003, the assessee again wrote to the Assessing Officer that his advocate did not recover from his illness. By this time, the assessee already moved a writ petition before this Court and the learned judge by an order dated September 18, 2003, gave directions for filing affidavits. However, no interim order was passed by his Lordship. It is significant to note that in the writ petition the assessee totally suppressed the correspondence exchanged between the parties after January 2003. Similarly, the assessee also suppressed the fact that he had already moved this Court, before the hearing officer while writing to him seeking for an adjournment on September 16, 2003. It is significant to mention here that the writ petition was affirmed on September 5, 2003.

(2.) THE learned judge dismissed the writ petition on two grounds: (i) The writ petitioner suppressed material facts before his Lordship by not incorporating the subsequent events in the writ petition. (ii) The subject proceeding could be proceeded with under Section 143(2) without considering the amendment and in case such amendment was applicable the plea of limitation was not available to the writ petitioner as the second letter issued on November 12, 2002, was a clarificatory one of the original notice dated October 21, 2002.

(3.) MR . J.P. Kaithan, learned Counsel appearing for the appellant before us has contended as follows: (i) The amendment of Section 143(2) came up in June, 2002, and was very much in force when the original notice dated October 21, 2002, was issued. Hence, the learned judge erred in holding that the old law would apply. (ii) The original notice dated October 21, 2002, was a vague notice. This was objected to by the assessee. The assessee asked the authority to issue a 'proper notice'. Hence, the subsequent letter dated November 12, 2002, should be considered as an independent notice and the same was of no consequence because by this time the said notice was barred by laws of limitation. (iii) The writ petition could not be dismissed on the ground of suppression as there was no suppression at all. According to him, the subsequent letters asking for adjournment on the ground of illness of the assessee and his advocate were not relevant to be brought in the writ petition. However, once the same was brought by the Revenue in their affidavit -in -opposition the assessee duly dealt with such allegation in the affidavit -in -reply.