Case Law Details
This Court in the case of The Commissioner of Income Tax V/s. Mr. Salman Khan [Income Tax Appeal No.2362 of 2009] decided on 1st December, 2009 has considered similar question and has held that in the absence of notice under section 143(2) (prior to the insertion of section 292BB), the reassessment order cannot be sustained. In the present case, the reassessment year involved relates to the period prior to the insertion of Section 292 BB. In this view of the matter, the appeal is dismissed with no order as to costs.
HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INCOME TAX APPEAL NO. 508 OF 2010
The Commissioner of Income Tax
V/s.
Mr. Salman Khan
ORDER
DATED : 6TH JUNE, 2011
1. In the present case, reassessment order passed under section 143(3) r/w 147 of the Income Tax Act, 1961 is held to be bad in law in view of the fact that the assessing officer has not issued notice under section 143(2) after issuing notice under section 148 of the Income Tax Act, 1961. This Court in the case of The Commissioner of Income Tax V/s. Mr. Salman Khan [Income Tax Appeal No.2362 of 2009] decided on 1st December, 2009 has considered similar question and has held that in the absence of notice under section 143(2) (prior to the insertion of section 292BB), the reassessment order cannot be sustained. In the present case, the reassessment year involved relates to the period prior to the insertion of Section 292 BB. In this view of the matter, the appeal is dismissed with no order as to costs.
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HIGH COURT JUDGMENT ON WHICH RELIANCE BEEN PLACED IS AS FOLLOWS :-
HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INCOME TAX APPEAL (L) NO.2362 OF 2009
The Commissioner of Income Tax
Vs.
Mr.Salman Khan
DATE : 1st DECEMBER,2009
ORDER
1. Heard.
Perused appeal
Following substantial questions of law are sought to be raised in the appeal.
1. Whether on the facts and in the circumstances of the case and in law, the Tribunal was right in canceling the assessment order by holding that the assessment framed u/s.143(3)/147 cannot be held to be a valid assessment as the A.O. has not assumed jurisdiction by issue of notice u/s.143(2) for completion of the assessment?
2. Whether on the facts and in the circumstances of the case and in law, the Tribunal was right in holding that sections 292BB & 292B were amended w.e.f. 0 1/04/2008 and are not applicable retrospectively, and mandatory notice u/s.143(2) has to be issued in this case, within the time limit prescribed under the Act?
3. Whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in holding that the provisions of Section 292B were not applicable to the facts of this case through the section was introduced w.e.f. 01/10/1975?
4. Whether on the facts and in the circumstances of the case and in law, the Tribunal was right in holding that the assessment order passed u/s. 143 (3)/147, without issuing a notice u/s.143(2), though sufficient opportunity was given to the assessee to present his case and has complied with all the requirements of the questionnaire issued by the A.O.?
2. Learned Counsel for the respondent brought to our notice a judgment of this Court in the case of Commissioner of Wealth Tax Vs. HUF of H.H.Late J.M.Scindia (2008) 300 ITR 193 (Bom.). Following the said judgment, the appeal being ITXA (L) No.3475 of 2008 was disposed of wherein the same question of law was involved, which is question No.1 herein this appeal..
3. So far as first question involved in the present appeal is concerned, the same is squarely covered by aforesaid judgment of this Court.
4. So far as second question is concerned, it relates to the operation of 292BB & 292B which was amended w.e.f. 1st April, 2008 and was came into operation prospectively for the A.Y.19992000. In this view of the matter, second question can hardly survive and so far as question Nos.3 and 4 are concerned, they are nothing but different shade of question No.2.
5. In the above view of the matter, appeal stands dismissed in limine for want of substantial question of law with no order as to costs.
6. At this stage, we would like to mention that we will be failing in our duty, if we do not place it on record that advocates appearing on behalf of the Revenue are expected to know the recent judgments of this Court as well as that of the Apex Court. In all fairness they are expected to bring it to the notice of the Court while making their legal submissions.
7. But unfortunately, Mrs.Padma Divakar, learned Counsel appearing on behalf of the Revenue in this matter could not point out the aforesaid judgments of this court pleading ignorance for want of knowledge. We have noticed number of times in number of cases wherever she appears, either she is not ready with the matter or she is not able to articulate her submissions may be for want of legal knowledge. This Court had an occasion to bring this fact to the notice of the Higher Officers of the Department at Mumbai. On few occasions, we were compelled to summon the Officers of the Department to argue the matter. In most of the cases, for want of assistance, we found it difficult to do justice in the matter. Administration of justice needs assistance. We expect the Department and the Chairman of the CBDT to take corrective steps in the matter so as to enable this Court to do better justice between the parties.
7. The Prothonotary and Senior Master of this Court is directed to send acopy of this order to the Chief Commissioner of Income Tax and the Chairman, CBDT for further action.
Too bad that the Deptt persists with a counsel who has got insufficient knowledge of law and is not able to argue effectively, to represent the Deptt before the High Court. Hope the Deptt will set right this defect shortly.