COMMISSIONER OF INCOME TAX Vs. INDRA DEVI JINDAL

JUDGEMENT

(1.) THIS appeal has been preferred by the Revenue under Section 260A of the IT Act, 1961 (for short, "the Act") against the order dt. 30th April, 2009 of the Tribunal, Amritsar in ITA No. 617/Asr/2008 for the asst. yr. 2004 -05 proposing to raise following substantial question of law :

(2.) RETURN of the Assessee for the asst. yr. 2004 -05 was processed under Section 143(1) of the Act but thereafter, finding that some income had escaped assessment, notice under Sections 148 of the Act was issued to the Assessee and assessment was completed under Section 143(3) of the Act, making addition on account of capital gains. Appeal of the Assessee against the order of assessment was dismissed but on further appeal, the Tribunal held that notice under Section 148 of the Act itself was not maintainable as the AO had not resorted to Section 143(2) of the Act and if that remedy was not taken, recourse to Section 147 of the Act was not permissible. Reliance was placed on judgment of the Hon'ble Supreme Court in Trustees of H.E.H. The Nizam's Supplemental Family Trust v. CIT : (2000) 159 CTR (SC) 114: : (2000) 242 ITR 381 (SC), holding that where assessment had not been finalised and notice under Section 143(2) of the Act was pending, reassessment could not be resorted. The observations of the Tribunal, after noticing the judgment in Nizam's Supplemental Family Trust (supra), are as under :

(3.) LEARNED Counsel for the Revenue submitted that the Tribunal erred in taking the view that without resorting to Section 143(2) of the Act, power under Section 147 of the Act cannot be invoked. Judgment in Nizam's Supplemental Family Trust (supra) was clearly distinguishable. Power under Section 147 of the Act is wide and independent power and there is no requirement that before exercise of such power, recourse to Section 143(2) of the Act must be taken. It is a different matter if Section 143(2) of the Act has been resorted to and assessment is pending. Parallel proceedings for reassessment cannot be initiated, as held in Nizam's Supplemental Family Trust (supra). Where no proceedings are initiated under Section 143(2) of the Act and conditions of Section 147 of the Act are fulfilled, there is no legal bar to proceed under the said provision of Section 147 of the Act. Reliance has been placed on judgment of the Hon'ble Supreme Court in Asstt. CIT v. Rajesh Jhaveri Stock Brokers (P) Ltd. : (2007) 210 CTR (SC) 30: (2007) 291 ITR 500 (SC), wherein it was held :