A.M. Sapre, J.
1. With the consent of parties the petition is heard finally.
2. This is a petition by the assessee under Article 226/227 of the Constitution of India. In this petition, the petitioner seeks to impugn the legality and validity of the notice dated March 30, 2005, issued by the Assessing Officer under Section 148 of the Income-tax Act, 1961 (Annex. C/1).
3. This notice is sought to be impugned by the petitioner, inter alia, on the ground that it is barred by limitation as provided under Section 149(1)(a) or (b) ibid. According to the petitioner, though notice is dated March 30, 2005, but the same was issued by the Department actually on April 5, 2005 and, therefore, it contravenes the requirement of Section 149 ibid. It is thus barred by limitation for making any reassessment.
4. Notice of this petition was issued to the respondents. They are served and represented.
5. Heard Shri V.K. Jain, learned Counsel for the petitioner and Shri R.L. Jain, learned senior Counsel with Miss Veena Mandlik, learned Counsel for the respondents.
6. Having heard learned Counsel for the parties and having perused the record of the case and having taken note of the submissions urged by learned Counsel for the parties, I am of the opinion that this issue as to on (i) what date the notice was signed, (ii) on what date it was issued, and lastly (iii) on what date it was served upon the assessee, needs to be examined on the facts and with reference to the original record of the case and for that purpose some enquiry is needed at the level of the Assessing Officer. The writ court is not the proper forum to hold such enquiry though limited in nature.
7. I, therefore, while disposing of this writ finally at this stage direct the Assessing Officer, i.e., the respondent, to first examine the question of limitation raised by the petitioner and also all other objections if available in law and then decide the issue of limitation keeping in view the requirement of Section 149 and the law laid down by the Supreme Court in the case of R.K. Upadhyaya v. Shanabhai P. Patel : [1987]166ITR163(SC) and CIT v. Major Tikka Khushwant Singh : [1995]212ITR650(SC) . Let this preliminary enquiry be held in the context of the original record of the case with reference to the relevant dates mentioned supra and then the issue in regard to limitation be decided as a preliminary issue. Depending upon the outcome of the issue, the Assessing Officer shall be free to proceed under Section 148. In case it is held that the notice is barred by limitation the question of further proceedings in the case of reassessment would not arise but in converse, it will arise. He shall then proceed to pass the reassessment order. Let this enquiry be held within a period of one month and decision be taken depending upon its outcome. C.C. as per rules.