SMT KIRAN KANWAR WIDOW OF LATE SHRI RAJENDRA SINGH KHETASAR, LEGAL HEIR OF SHRI RAJENDRA SINGH KHETASAR, VILLAGE Vs. UNION OF INDIA

JUDGEMENT

(1.) The present appeal arises from order dated 15th February 2016 dismissing S.B. Civil Writ Petition No.4531/2015 declining interference with the notice dated 27.3.2015 under Section 148 of the Income-tax Act, 1961 (herein after referred as 'the Act') for fresh assessment with regard to Assessment Year 2008-09.

(2.) Learned Senior Counsel for the Appellant submitted that earlier during assessment proceedings, a sum of Rs. Twenty lacs was disallowed as expenditure shown in the profit and loss account by the Assessing Officer. The Commissioner Income-Tax (Appeals) allowed the same on. The Respondent was unsuccessful before the Income Tax Appellate Tribunal on 25.11.2013. The application by the Respondent under Section 154 of the Act was also rejected by the Tribunal on 31.7.2014. The assessment thus attained finality. The assessing officer issued notice on 5.3.2015 why re-assessment be not ordered under Section 148 of the Act. The assessee filed objections on 16.3.2015. Fresh assessment was permissible under Section 147 of the Act if the Assessing Officer has reason to believe that income had escaped assessment and that this was occasioned due to failure of the assessee to disclose true and material facts. The sine qua non for assuming jurisdiction was availability of information and/or material not placed by the assessee before the Assessing Officer and which was discovered or surfaced subsequently. Mere rhetorical repetition of words of the statute in the notice dated 27th March 2015 of reason to believe that income had escaped the assessment will not vest jurisdiction in the Assessing Authority to re-open the assessment. The reasoned order for reassessment discloses that there was no fresh material for reason to believe or that the assessee had failed to disclose true and material facts, leading to income escaping assessment. The assessment was sought o be reopened on basis of the same materials apparent from the recitals "on examination of the assessment record, it is found ..". Reliance was placed on (1961) 41 ITR 191 (Calcutta Discount Co. Ltd. v. Income-tax Officer, Companies District-I, Calcutta) .

(3.) Counsel for the Respondent submitted that no writ petition would lie against a show cause notice, relying on (2003) 259 ITR 19 (G.K.N. Driveshafts (India) Ltd v. Income-tax Officer and others) and a Division Bench order of this Court reported in (2005) 144 Taxman 292 (Raj.) (Assistant Commissioner of Income-tax v. Banswara Syntex Ltd). So long as Assessing Officer has power to re-open the assessment, for reasons recorded to his satisfaction the assessee must file his reply and if aggrieved can pursue his remedies in appeal. The writ petition challenging the notice for re-assessment was not maintainable. If an alternative statutory remedy is available the discretionary jurisdiction under Article 226 must not be exercised and that too against a show cause notice.