Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 2
CASE NO.:
Appeal (civil) 2101 of 2008
PETITIONER:
L.N. Hota & Company
RESPONDENT:
Commissioner of Income-Tax & Anr
DATE OF JUDGMENT: 26/03/2008
BENCH:
S. B. SINHA & HARJIT SINGH BEDI
JUDGMENT:
J U D G M E N T
(NON-REPORTABLE)
CIVIL APPEAL NO 2101 OF 2008
(arising out of SLP (C) No. 18971 of 2006)
HARJIT SINGH BEDI,J.
1. Leave granted.
2. This appeal at the instance of the Assessee arises from
the following facts:
3 The Assessing Officer issued a notice on
3rd December, 1998, to the assessee under Section 148 of the
Income Tax Act, 1961 (hereinafter referred to as the "Act" )
requiring the assessee to file the return of its income for the
assessment year 1997-1998. This notice was served on the
assessee on 7th December, 1998. The assessee filed its return
on 5th January, 1999, whereafter the Assessing Officer issued
a notice under sub section (1) of Section 142 of the Act to the
assessee on 28th June, 2000. The Assessing Officer vide his
order dated 27th November, 2000, completed the assessment
estimating the income of the petitioner from the business by
applying the provisions of Section 145 of the Act. The
assessee filed an appeal before the Commissioner, who by his
order dated 4th January, 2002, did not adjudicate the issue of
the legality of the assessment, but nevertheless maintained
the order of the Assessing Officer and the Commissioner of
Income Tax (Appeals) by his order dated 25h February, 2002
held a petition under Section 154 of the Act was not
maintainable and accordingly dismissed the same. An appeal
was thereafter taken before the Income Tax Appellate Tribunal
(hereinafter referred to as "Tribunal") which rejected the
primary prayer of the assessee that the assessment made
without issuance of notice under Section 143 (2) of the Act
within a period of one year was invalid but on the facts of the
case, observed that some reconsideration was called for and
accordingly remitted the matter to the Assessing Officer for a
fresh look vide order dated 13th April, 2004. The Assessing
Officer thereupon in his order dated 24th March, 2006 Ex.P-5
made a fresh assessment under Sections 143 (3)/254 of the
Act. The assessee also filed a miscellaneous application before
the Tribunal praying for the recall of the order dated 13th April,
2004, but the Tribunal dismissed the application vide its order
dated 18th May, 2006, holding that as the order dated 13th
April, 2004 was sub-judice before the Orissa High Court in an
appeal, the Tribunal had no locus standi to adjudicate upon
the matter. The Orissa High Court however in its order dated
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 2
14th August, 2006 held that as the assessment order had not
come about by way of scrutiny, the provisions of Section 143
(2) would not be applicable and as such there was no
justification for the court in entertaining the matter under
Section 260-A of the Act. It is in this circumstance, that the
present appeal is before us by way of special leave.
3. The learned counsel for the parties have placed reliance
on a large number of judgments relating to Sections 139 and
143 of the Act. The learned counsel for the appellant has tried
to convince us that the Section 143 (2) of the Act would apply
to the present assessment as well and has placed on record a
large number of cases which have been given to us bound as a
compilation of judgments. The learned counsel for the
department has however reported the judgment of the courts
below and has likewise referred us to a string of judgments.
We are of the opinion that in the light of the issues raised that
the matter does require consideration. We observe that
though the question of the applicability of Section 143 (2) of
the Act was specifically raised throughout, prima facie, no
finding based on the law as it stands, has been recorded. We,
are therefore, of the opinion that the matter needs to be
remitted to the High Court for a fresh decision in accordance
with law. We accordingly set aside the order dated
14th August, 2006 and request the High Court to entertain
the appeal under Section 260 (A) of the Act and to re-
appraise the matter in the light of the arguments that have
been raised by the parties. There will be no order as to costs.