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Fancy Dyeing and Printing Works Vs. Income-tax Officer - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 8682 of 1978
Judge
Reported in[1987]166ITR54(Cal)
ActsIncome Tax Act, 1961 - Sections 263 and 282; ;Code of Civil Procedure (CPC) , 1908 - Order 5, Rules 12 and 13; ;Constitution of India - Article 226
AppellantFancy Dyeing and Printing Works
Respondentincome-tax Officer
Appellant AdvocateSanjoy Bhattacharya, Adv.
Respondent AdvocateSamir Banerjee, Adv.
Excerpt:
- .....assessee-firm were not available at calcutta to collect all materials to reply to the show-cause notice issued by the commissioner, it would be fair if the commissioner is directed to hear the matter after giving the petitioner another opportunity of being heard.6. the application is, therefore, disposed of by the following order :7. in the event any order had been passed by the commissioner pursuant to the notice dated november 18, 1978, or november 24, 1978, issued under section 263 for the assessment year 1976-77 before the interim order waspassed on november 28, 1978, the said order would stand set aside and the commissioner concerned will pass a fresh order after giving an opportunity of being heard to the petitioner. in the event no such order was passed under section 263, the.....
Judgment:

Ajit Kumar Sengupta, J.

1. In this application under article 226 of the Constitution, the petitioner, a registered firm, an assessee under the Income-tax Act, 1961 ('the Act'), has challenged the notice dated November 24, 1978, issued under Section 263 of the Act for the assessment year 1976-77.

2. The assessment for the assessment year 1976-77 was completed on November 29, 1976. A notice dated November 24, 1978, was served on the petitioner firm on November 25, 1978, fixing the case under Section 263 on November 28, 1978. From the said notice dated November 24, 1978, it appears that an earlier show-cause notice No. 1/WB-10/1978-79/ 1978, dated November 18, 1978, is alleged to have been issued to the petitioner. The case of the petitioner is that the said earlier notice dated November 18, 1978, was not served upon the petitioner. The only notice which the petitioner received was the notice dated November 24, 1978. The petitioner found it difficult to comply with the said notice within a short time and it asked for an adjournment for three days which was not allowed. On November 28, 1978, this application was moved and an interim order was obtained restraining the respondents from proceeding with the notice under Section 263 dated November 24, 1978.

3. The ground taken in the petition is that no reasonable opportunity was given to the petitioner as enjoined under Section 263 and the notice was not served in accordance with Section 282 of the Act, or under Order V, Rule s 12 and 13, of the Code of Civil Procedure, 1908.

4. No affidavit-in-opposition has been filed by the respondents in this case although direction was given on December 29, 1978, by A. K. Mookher-jee J. The material allegations made in the petition, therefore, remain uncontroverted. The assessment was completed on November 29, 1976. Accordingly, an order under Section 263 was required to be passed, if at all, by November 28, 1978. Admittedly, the first notice which was issued on November 18, 1978, was not received by the petitioner. The reminder which was issued on November 24, 1978, indicated the grounds on which the Commissioner proposed to revise the assessment for the assessment year 1976-77. The petitioner, however, found the time to be too short to comply with the requisitions made by the Commissioner as all the partners were not available at Calcutta at the material time. In short, the grievance of the petitioner is that the petitioner was not given reasonable opportunity of being heard.

5. Section 263 does not require any notice to be issued by the Commissioner before he assumes the jurisdiction to proceed to revise an order passed by the Income-tax Officer. The jurisdiction of the Commissioner to proceed under Section 263 is not dependent on the fulfilment of any condition precedent. All that he is required to do is to give the assessee an opportunity of being heard. This has nothing to do with the jurisdiction of the Commissioner. It pertains to the region of natural justice. The reasonable opportunity in the context of Section 263 means that the Commissioner must disclose the grounds on which he desires to revise. The breach of the principles of natural justice may affect the legality of the order but cannot affect the jurisdiction of the Commissioner. Even assuming that the first notice was not received by the assessee, the notice dated November 24, 1978, was received on November 25, 1978, fixing the hearing on November 28, 1978. It cannot be said that the assessee did not get reasonable notice. However, having regard to the fact that the partners of the assessee-firm were not available at Calcutta to collect all materials to reply to the show-cause notice issued by the Commissioner, it would be fair if the Commissioner is directed to hear the matter after giving the petitioner another opportunity of being heard.

6. The application is, therefore, disposed of by the following order :

7. In the event any order had been passed by the Commissioner pursuant to the notice dated November 18, 1978, or November 24, 1978, issued under Section 263 for the assessment year 1976-77 before the interim order waspassed on November 28, 1978, the said order would stand set aside and the Commissioner concerned will pass a fresh order after giving an opportunity of being heard to the petitioner. In the event no such order was passed under Section 263, the final order shall not be passed by the Commissionar before January 31, 1986. In the meanwhile, the proceedings shall continue and the petitioner shall be given an opportunity of being heard.

8. Mr. Bhattacharjee, the learned advocate appearing for the petitioner, has submitted that the petitioner will co-operate with the Department in this matter.

9. The rule is disposed of accordingly.

10. There will be no order as to costs.

11. It is recorded that Miss Aparna Dutta has since retired from the case and that Mrs. Dipti Bhattacharyya has filed a fresh power of attorney. That may be accepted by the Department.


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