CHANDRA LAKSHMI TEMPERED GLASS.CO. (PVT.) LTD. VS ASSISTANT COMMISSIONER OF INCOME-TAX, 1999 PTD-HIMACHAL-PRADESH-HIGH-COURT-INDIA 257 (1996)

(a) Income-tax---

----Reassessment---Notice---Sanction for issue of notice---Law applicable-- Effect of amendment of S.2(19-A) w.e.f. 1-6-1994---Additional Commissioner was competent to accord sanction on 31-10-1995---Power would, necessarily, relate to period earlier than the notice---Indian Income Tax Act, 1961, Ss.2(19-A) 117, 148 & 151(2). ,

(b) Writ---

----Notice---Limitation---Challenge to notice on ground of limitation--Writ will not issue---Constitution of India, Art.226.

An amendment was introduced in section 2(19-A) of the Income Tax Act, 1961, by the Finance Act, 1994, with effect from June 1, 1994. By the said amendment, the expression "Deputy Commissioner" has been defined as a person appointed to be a Deputy Commissioner or an Additional Commissioner under subsection (1) of section 117.

Held, dismissing the writ petition, that once the Additional Commissioner falls within the definition of the Deputy Commissioner, then he could exercise the power of the Deputy Commissioner under section 151(2) of the Act, which will, necessarily, relate to an earlier period than the notice. In this case, the notice under section 148 of the Act was issued in 1995 in respect of the assessment for an earlier year 1989-90. At that time, the Additional Commissioner was empowered to grant sanction.

The contention that the notice was barred by limitation could be raised before the Income-tax Authorities. The High Court acting under Article 226 of the Constitution would not consider it.

M.M. Khanna for Petitioner.

Inder Singh for Respondent; Nos. l and 2.

P.A. Sharma for Respondent No.3.

JUDGMENT

M. SRINIVASAN, C.J.---This writ petition is directed against the notice under section 148 of the Income. Tax Act, 1961. The main objection raised is that the sanction of the competent Authority, as prescribed by section 151(2) of the Act has not been obtained by the first respondent. The reply of the respondents is that the sanction has been accorded by the Additional Commissioner of Income-tax by order dated October 31, 1995. A copy of the said sanction letter is annexed as Annexure R.A. The contention of, the petitioner's counsel is that the Additional Commissioner will not be a Deputy Commissioner, as contemplated by the section and the only authority empowered by the section is the Deputy Commissioner. This contention overlooks the amendment introduced in section 2(19-A) of the Income Tax Act by the Finance Act, 1994. with effect from June 1, 1994. By the said amendment, the expression "Deputy Commissioner" has been defined as a person appointed to be a Deputy Commissioner or an Additional Commissioner under subsection (1) of section 117. In this case, the Additional Commissioner has exercised his powers on October 31, 1995.

The next contention is that the assessment relates to a much earlier period ending 1989-90. According to learned counsel, the Additional Commissioner has no power to grant sanction with regard to such a period. There is no substance in this contention.. Once the Additional Commissioner falls within the definition of the Deputy Commissioner, then he could exercise the power of the Deputy Commissioner under section 151(2) of the Act, which will necessarily relates to an earlier period than the notice. In this case, the notice under section 148 of the Act issued in 1995. At that time, the Additional Commissioner was empowered to grant sanction. Hence, the objection fails.

The third contention is that the notice is barred by imitation. This is a matter, which can be raised by the petitioner before the concerned authorities. It is only a notice utilised under section 148 of the Act and this Court will go into the question of jurisdiction only. Once, it is found that the authority during the said period has done the same within his power, as required under the statute, as such, the other objections regarding notice can be raised by the petitioner before the concerned authorities.

With the above observations, this writ petition is dismissed.

C. W. P. No.645 of 1596:

In view of the dismissal of the writ petition, the present application is also dismissed and the interim order, dated April 8, 1996, is vacated.

M.B.A./1673/FCPetition dismissed.