1. By means of the present writ petition filed under article 226/227 of the Constitution of India, the petitioner, Dharam Pal Singh, seeks a writ, order or direction in the nature of certiorari quashing the notice under section 148 of the Income-tax Act, 1961, hereinafter referred to as “the Act”, for the assessment years 1995-96 and 1996-97, filed as annexure 2 to the writ petition and other consequential relief.
2. Briefly stated the facts giving rise to the present writ petition are as follows:
3. The petitioner is an individual. He claims to be a senior citizen. He is drawing pension. He voluntarily filed the return for the assessment year 1997-98. The Income-tax Officer, Ward- 2, Hapur, issued notices dated March 26, 2002, under section 148 of the Act seeking to reassess the petitioner for the assessment years 1995-96 and 1996-97. According to the respondents, the notice was served personally on the petitioner on March 28, 2002, which is being strongly denied by the petitioner.
4. By way of abundant caution, the Income-tax Officer, Ward-2, Hapur, respondent No. 1, had also sent notices dated March 26, 2002, under certificate of posting, which is admitted to have been served upon the petitioner on April 2, 2002.
5. We have heard Sri M. Manglik, learned counsel for the petitioner, and Sri A.N Mahajan, learned standing counsel for the respondents.
6. Sri Manglik submitted that the notice under section 148 for the assessment year 1995-96 has not been issued within the extended period of six years as provided under section 149(1)(b) of the Act as it was served upon the petitioner on April 2, 2002, and period of six years had expired on March 31, 2002. The submission is misconceived. The hon'ble Supreme Court in the cases of R.K Upadhyaya v. Shanabhai P. Patel., [1987] 166 ITR 163 and Cit v. Major Tikka Khushwant Singh, [1995] 212 ITR 650 has held that from the 1922 Act the position regarding service of notice under section 148 has undergone a sea change in the 1961 Act and the only requirement for taking action for issuance of notice under section 148 is that the notice should be issued within the period of limitation. Thus, the plea advanced by learned counsel for the petitioner is misconceived and is rejected.
7. Sri Manglik, learned counsel for the petitioner, then submitted that in the present case, the proceeding under section 148 initiated earlier were subsequently dropped, therefore, for initiating the proceedings under section 147, the requirement of the proviso to sub-section (1) of section 151 for issuance of notice ought to have been fulfilled. Here, the approval has been granted by the Additional Commissioner whereas under the proviso to sub-section (1) of section 151, the requirement is that the approval ought to have been given by the Commissioner or Chief Commissioner, as the case may be.
8. The submission is misconceived. In the present case, the proceeding under section 147 of the Act has been dropped on account of the objection raised to the territorial jurisdiction of the officer who had issued the notice. It was issued by the Deputy Commissioner of Income-tax, Circle Bulandshahr, whereas the jurisdiction was vested with the Income-tax Officer, Ward-2, Hapur. Thus, the assessment proceedings for the assessment year 1996-97 cannot be treated to be an assessment order under section 147 as contemplated under section 151 of the Act. Since, in the present case, there is neither any assessment order under sub-section (3) of section 143 or section 147 of the Act, the proviso to sub-section (1) of section 151 would not be applicable and the case shall be covered by sub-section (2) which requires the satisfaction/approval of the Joint Commissioner. It may be mentioned here that section 2(28C) provides that “Joint Commissioner” means a person appointed to be a Joint Commissioner of Income-tax or an Additional Commissioner of Income-tax under sub-section (1) of section 117 of the Act. The Additional Commissioner would thus be a Joint Commissioner within the meaning of the word “Joint Commissioner” under sub-section (2) of section 151 of the Act. There is an order of the Additional Commissioner recording his satisfaction and granting approval to the issuance of the notice.
9. In view of the foregoing discussion, we find no merit in the writ petition. It is dismissed in limine.