Motilal Bimalchand Jain (HUF) vs Commissioner of Income Tax

A.M. Sapre, J.—The petitioner seeks to challenge the issuance of notice u/s 263 of the Income Tax Act, 1961, dated February 24, 2005 (annexure P 11), 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 (annexure P6), in exercise of powers conferred u/s 263 of the Act.

It is the case of the petitioner that the notice impugned is totally without jurisdiction. It is also their case that an objection to that effect has been raised by the petitioner pointing out the grounds on which notice can be held bad in law. 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 COMMISSIONER OF Income Tax, M.P. -II Vs. R. S. BANWARILAL., and again in Commissioner of Income Tax Vs. K.L. Rajput, .

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. When the issue raised by the assessee relates to the question of jurisdiction then, it is always desirable to decide the said issue prior in point of time as a preliminary issue before embarking upon the merits or demerits of the controversy. It is only when the preliminary issue is held against the assessee, that the assessing authority gets jurisdiction to proceed on the merits of the case.

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 (annexure P12), 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.