M.H.S. Ansari, J.
1. The unsuccessful writ petitioner is the appellant before us. The appeal is directed against the judgment and order dated April 27, 1989, whereby writ petition being C. R. No. 5559 (W) of 1997 was dismissed and rule discharged.
2. The brief facts of the case are that :
For the assessment year 1970-71, the assessee (appellant before us) filed four returns, the first such return was filed on September 29, 1970 and the last such return was filed on July 4, 1974. According to the appellant, assessment could have been made but was not made within March 18, 1976 and, therefore, the Income-tax Officer ceased to have jurisdiction to make any assessment. The assessee was served with a notice dated August 28, 1977, calling upon him to show cause why a penalty should not be levied on him under Section 140A(3) of the Income-tax Act. The reason for such notice is stated to be that the tax payable by the assessee on self-assessment as required under law has not been paid by the assessee. The assessee was also served with another notice dated October 5, 1977, under Section 274 read with Section 271 of the Income-tax Act calling upon the assessee to appear before the Income-tax Officer on October 29, 1977, and to show cause why an order imposing a penalty should not be made under Section 271 of the Income-tax Act for having concealed the particulars of his income or furnished inaccurate particulars of such income.
3. The assessee questioned the said two notices by filing two several writ applications which were registered as C. R. No. 5046(W) of 1977 pertaining to notice dated August 28, 1977, under Section 140A(3) of the Income-tax Act and C. R. No. 5559(W) of 1977 with respect to notice issued under Section 274 read with Section 271 of the Income-tax Act. Both the matters were heard analogously and by the orders of even date the two writ petitions were dismissed.
4. In so far as the judgment under appeal (in C. R. No. 5559(W) of 1977) is concerned, it is noticed that the writ application was dismissed for the reasons stated in the judgment in C. R. No. 5046(W) of 1977. The judgment in the said C. R. No. 5046(W) of 1977 is mainly concerned with the validity of the show cause notice issued under Section 140A(3).
5. Ms. Chandrima Bhattacharjee, learned counsel for the appellant, is justified in contending that the judgment under appeal has not dealt with the questions arising for consideration in relation to the show cause notice issued under Section 271 impugned in the writ application. Therefore, it is contended that there has been no valid consideration of the contentions raised on behalf of the assessee-appellant and the judgment under appeal warrants interference by this court. In support of the said submissions, it was contended by Ms. Chandrima Bhattacharjee that there are no proceedings which can be said to be pending before the Income-tax Officer to confer jurisdiction on him to issue the impugned notice. The bar of limitation under Section 153(1)(c) is attracted and, therefore, the impugned notice is wholly without jurisdiction. It was elaborated by Ms. Bhattacharjee that it is only in the course of assessment proceedings that the Income-tax Officer could have come to the conclusion that the assessee was guilty of the offence contemplated under Section 271(1)(c) of the Act. As there are no proceedings for assessment pending before the Income-tax Officer relevant to the assessment year 1970-71 after one year from the date of the last return (March 18, 1976) there can be no occasion for the Income-tax Officer to either form the belief or to come to a conclusion as to the alleged concealment of income which is a condition precedent to the exercise of power under Section 274 read with Section 271 and Section 153(1)(c) of the Income-tax Act The conditions precedent have not been satisfied and, therefore, the impugned notice is wholly without jurisdiction and warrants to be set aside.
6. On the other hand, Mr. Nizamuddin, learned counsel for the respondents, referring to and relying upon the averments in the affidavit-in-opposition submitted that the writ petition is premature. It was contended that the case of the assessee falls under Section 153(1)(b) the time limit for making the assessment is eight years from the end of the assessment year and, therefore, the contention as to the bar of limitation pleaded by the assessee is untenable. It was further submitted that from the assessee's own showing it will be apparent that four different returns showing different incomes had been filed by the assessee for the assessment year 1970-71 and it is, therefore, a fit case attracting the provisions of Section 271(1)(c) of the Income-tax Act. The attention of this court was invited to the letter of the Income-tax Officer dated September 29, 1977, at page 30 of the paper book wherein the assessee was requested to appear before the Income-tax Officer on October 5, 1977 and to clarify certain points in support of his return with accounts and documents. Mr. Nizamuddin referring to paragraph 14 of the affidavit-in-opposition submitted that the assessee's advocate appeared at the hearing and took adjournment to produce evidence in support of the return and in support of such assurance prayed for adjournment It was, therefore, submitted that the assessment proceedings were pending on the said dates and the question of bar of limitation does not arise. It was strenuously urged that the period of limitation in the case on hand is eight years for completing the assessment and reliance is placed on Section 153(1)(b) of the Income-tax Act by learned counsel for the Revenue.
7. Having heard learned counsel for the respective parties we are of the view that in the case on hand what has been questioned is a show cause notice. The same is questioned on the ground of jurisdiction. The jurisdiction of the Income-tax Officer to issue the impugned notice is itself questioned on the ground of the bar of limitation. It is, therefore, not a case of inherent lack of jurisdiction. The question as to bar of limitation is a mixed question of fact and law. In the case on hand the facts would have to be ascertained and thereafter the law applicable has to be applied before any conclusion can be arrived at as to the jurisdiction of the Income-tax Officer to issue the impugned notice. Where as in the present case, certain disputed questions of fact need to be adjudicated as can be seen from the rival contentions and further the constitutionality of any provision of the Act is not in question and also keeping in view that the very purpose of the show-cause notice is to afford an opportunity of hearing to the appellant only thereafter a decision would be taken by the respondent authority, interference before that stage would be premature. Accordingly, we are inclined to accept the submission of Mr. Nizamuddin that in the instant case the writ application ought not to have been entertained and ought to have been dismissed as premature. The assessee is not remediless as in terms of the statute itself there is a remedy available in the form of appeal/revision as against any order passed by the Assessing Officer.
8. Further, we are persuaded to the view that we have taken as above for the reason that the contentions raised have not been dealt with in the judgment under appeal. The proper course, in our considered view, therefore, would be to relegate the assessee to show cause before the Assessing Officer. Accordingly, we direct that the respondent-Assessing Officer shall afford the assessee an opportunity of hearing and dispose of the matter in accordance with law and in compliance with the principles of natural justice. All questions are accordingly kept open. It shall be open to the appellant-assessee to raise all such defences of fact and law as are open to him in law and for the Assessing Officer to consider the same in accordance with law uninfluenced by any observations contained either in the judgment under appeal or this judgment and order.
9. The appeal accordingly stands disposed of with the directions as above.
10. In the facts and circumstances of the case there shall, however, be no order as to costs.
Soumitra Pal, J.
11. I agree.