MOTILAL BIMALCHAND JAIN (HUF) v. COMMISSIONER OF INCOME TAX - 2005-LL-0317

Citation	2005-LL-0317
Appellant Name	MOTILAL BIMALCHAND JAIN (HUF)
Respondent Name	COMMISSIONER OF INCOME TAX
Court	ITAT
Relevant Act	Income-tax
Date of Order	17/03/2005
Assessment Year	2000-01
Judgment	View Judgment
Keyword Tags	issuance of notice
Bot Summary:	JUDGMENT A. M. Sapre J. The petitioner seeks to challenge the issuance of notice under section 263 of the Income-tax Act, 1961, dated February 24, 2005, issued by the Commissioner of Income-tax in respect of the assessment year 2000-01, whereby he has proposed to set aside the assessment order, passed by the Assessing Officer on March 28, 2003, in exercise of powers conferred under section 263 of the Act. It is the case of the petitioner that the notice impugned is totally without jurisdiction. Learned counsel for the petitioner has attempted to support his submissions on the basis of the law laid down by the Full Bench of this court, reported in CIT v. R. S. Banwari Lal 1983 140 ITR 3; 1982 10 ITC 221 and again in CIT v. K. L. Rajput 1987 164 ITR 197; 1986 10 ITC 548 FB. Learned counsel for the petitioner has contended by filing this writ petition that either this court should quash this notice by taking note of the objections raised by the petitioner or in the alternative, the learned Commissioner, Income- tax, who has issued the impugned notice be directed to decide the preliminary objection raised by the petitioner, as according to learned counsel for the petitioner, it goes to the root of the matter. Having heard learned counsel for the petitioner and having perused the record of the case, I am inclined to accept the latter submission urged by learned counsel for the petitioner. In my view, it is the duty of the Commissioner, i.e., the issuing authority of the impugned notice to decide the preliminary objection raised by the assessee in regard to the validity of the notice. Accordingly and in view of the aforesaid discussion which alone is necessary for giving a direction to the Commissioner, i.e., the respondent herein, to decide the preliminary objection raised by the petitioner in his objection dated March 9, 2005, about the legality of the notice impugned in this petition. The petition is accordingly finally disposed of in limine with the aforesaid direction without issuing any notice to the respondent which is not considered necessary because this court has not decided any issue against the respondent except to direct for deciding an issue on the merits.

JUDGMENT A. M. Sapre J. petitioner seeks to challenge issuance of notice under section 263 of Income-tax Act, 1961, dated February 24, 2005 (annexure P11), issued by Commissioner of Income-tax in respect of assessment year 2000-01, whereby he has proposed to set aside assessment order, passed by Assessing Officer on March 28, 2003 (annexure P6), in exercise of powers conferred under section 263 of Act. It is case of petitioner that notice impugned is totally without jurisdiction. It is also their case that objection to that effect has been raised by petitioner pointing out grounds on which notice can be held bad in law. Learned counsel for petitioner has attempted to support his submissions on basis of law laid down by Full Bench of this court, reported in CIT v. R. S. Banwari Lal [1983] 140 ITR 3 (MP); [1982] 10 ITC 221 and again in CIT v. K. L. Rajput [1987] 164 ITR 197; [1986] 10 ITC 548 (MP) [FB]. Learned counsel for petitioner has contended by filing this writ petition that either this court should quash this notice by taking note of objections raised by petitioner or in alternative, learned Commissioner, Income- tax, who has issued impugned notice be directed to decide preliminary objection raised by petitioner, as according to learned counsel for petitioner, it goes to root of matter. Having heard learned counsel for petitioner and having perused record of case, I am inclined to accept latter submission urged by learned counsel for petitioner. In my view, it is duty of Commissioner, i.e., issuing authority of impugned notice to decide preliminary objection raised by assessee in regard to validity of notice. When issue raised by assessee relates to question of jurisdiction then, it is always desirable to decide said issue prior in point of time as preliminary issue before embarking upon merits or demerits of controversy. It is only when preliminary issue is held against assessee, that assessing authority gets jurisdiction to proceed on merits of case. Accordingly and in view of aforesaid discussion which alone is necessary for giving direction to Commissioner, i.e., respondent herein, to decide preliminary objection raised by petitioner in his objection dated March 9, 2005 (annexure P12), about legality of notice impugned in this petition. petition is accordingly finally disposed of in limine with aforesaid direction without issuing any notice to respondent which is not considered necessary because this court has not decided any issue against respondent except to direct for deciding issue on merits. *** MOTILAL BIMALCHAND JAIN (HUF) v. COMMISSIONER OF INCOME TAX

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