ABHAY KUMAR SHROFF Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THE petitioner who is the assessee has prayed for quashing the impugned notice purportedly issued under subsection (1) of Section 142 of the Income Tax Act 1961 (in short the Act) and for a direction upon the respondents not to continue with the assessment proceeding in respect of the assessment year in question. By amendment petition dated 8.1.2007 the petitioner have also prayed for quashing the order of assessment and demand notice and show cause notice issued by the Assistant Commissioner of Income Tax in respect of the assessment year 2004 -05 which was pending on the date of filing of the writ petitions.

(2.) THE brief facts of the case are that the petitioner filed his income tax return voluntarily under Section 139(1) of the Act alongwith their profit and loss account drawn for the financial year ending 31st March 2004. After the return was filed on 17.5.2004 the petitioner's authorized representative appeared before respondent no. 3, the Assistant Commissioner of Income Tax and filed petitioner's letter dated 25.7.2006 alongwith various details in respect of income, receipt, expenses, assets and liabilities as reflected from the profit and loss account and the balance sheet. On 24.8.2006 search and seizure operations were carried out by the officials of the Income Tax Department and the investigation wing at the offices and residence of the petitioner, which continued for a number of days. Respondent no. 3, thereafter, issued notice to the petitioner under Section 142 of the Act asking him to file his income tax return for the assessment year 2004 -05 and to produce the books of account, bank passbooks and vouchers etc. for the financial year ending 31st March 2004. The authorized representative of the petitioner appeared before respondent no. 3 and drew his attention to the fact that the petitioner has already filed his return for the financial year 2004 -05 accompanied with all the documents of profit and loss account. Petitioner also submitted to respondent no. 3 that no notice under Section 153A of the Act had been issued to the petitioner asking him to file his income tux return for the sixth assessment year as contemplated in the said section and further stated that the assessment proceeding for the assessment year 2004 -05 which was pending on the date of initiation of search and seizure under Section 132 of the Act has already awaited and continuation of the impugned assessment proceeding is wholly without jurisdiction illegal and invalid. By amendment petition, the petitioner pleaded that inspite of pendency of the writ petition, the respondent proceeded with the assessment proceeding and passed final order of assessment.

(3.) MR . N.K. Poddar, learned senior counsel appearing for the petitioner -assessee assailed the entire procedure adopted by the respondent authorities in the matter of search and seizure and passing final order of assessment as being illegal and wholly without jurisdiction. Learned Counsel drew my attention to the relevant provisions of Income Tax Act particularly Section 153A of the Act and submitted that under the new scheme forming part of Section 153A, 153B and 153C of the Act deal with the assessment in case of search and requisition in substitution of erstwhile assessment scheme contained in Chapter XIV -B of the Act. Learned Counsel submitted that under certain provisions of Section 142A of the Act assessment or reassessment, if any, relating to any assessment year falling within the period of any of the sixth assessment year ending on the date of initiation of search under Section 132 of the Act by making requisition under Section 132A of the Act, shall await. Learned Counsel submitted that in terms of Section 153A of the Act notice was required to be issued to the petitioner for the sixth assessment year i.e. 2001 -02 to 2004 -05. Learned Counsel submitted that the impugned assessment order passed by the respondent pending hearing of the writ petitions is absolutely illegal and wholly without jurisdiction.