Mrs. Nita Tushar Tanna vs A. B. Joshi, Fifth Income Tax Officer and others

T.D. Sugla, J.—The challenge in this petition is to the jurisdiction of the Income Tax Officer to issue notices u/s 148 of the Income Tax Act, 1961, dated August 3, 1988, and August 23, 1988, for the assessment year 1982-83. Notice dated August 3, 1833, was stated to have been received on August 23, 1988, whereas the notice dated August 23, 1988, in identical terms was stated to have been recived on October 26, 1988. The petitioner has expressed her surprise on it and, in the absence of an affidavit-in-reply, it is still not clear how and in what circumstances the two notices u/s 148 were issued in the course of 20 days for the same assessment year.

Averments are made in the petition that notice u/s 148 were issued by the Income Tax Officer with a view to withdraw relief granted to the petitioner u/s 35CCA in respect of a sum of Rs. 70,000 donated by the petitioner to Seva Charitable Trust even though the notification issued by the Central Board of Direct Taxes approving the said trust u/s 35CCA was not withdrawn. In the absence of any affidavit-in-reply, the court has to proceed on the assumption that the averments made hereinabove are correct.

That being so, the facts in this petition are better for the petitioner than in the case of Seksaria Biswan Sugar Factory Ltd. and another Vs. Inspecting Assistant Commissioner and other., in which it was held by this court that the Income Tax Officer had not acquired the necessary jurisdiction for reopening the assessment u/s 148. Following the said judgment. The rule is made absolute in terms of prayer clauses (a) and (b) with no order as to costs.