Sheila Brij Jaggi Vs. 11th Income-tax Officer and Others - Court Judgment

T.D. Sugla, J.

1. The challenge in this petition is to the notice issued by the Income-tax Officer under section 148 of the Income-tax Act, 1961, for the assessment year 1980-81. Her case is that she filed her return for the year originally on December 30, 1980, and a revised return on October 20, 1981. So far as she is aware, the assessment was not made. Placing reliance on the Supreme Court decision in the case of CIT v. Ranchhoddas Karsonadas : [1959]36ITR569(SC) , Shri Pandit, learned counsel for the petitioner. Contended that valid notice under section 148 of the Act could not have been issued when the return was filed but no assessment was completed. In the absence of the affidavit-in reply, the averments made in the petition, it was stated remained unrebutted.

2. Shri Jetly, learned counsel for the Income-tax Department, on the other hand, invited the court's attention to the fact that, even according to the petitioner, the return of income was not accompanied by the profit and loss account and the valuation report. The return was incomplete and thus an invalid return. To this, Shri Pandit's contention is that section 139(9) of the Act requires the Income-tax Officer in the case of an incomplete return to bring the said fact to the notice of the assessee so that the return to the extent it is deficient is completed. Nothing of the type was done.

3. In the circumstances of the case, it has to be assumed that the return for the assessment year 1980-81 filed by the petitioner was pending. It is settled law that income cannot be said to have escaped assessment when the assessment proceedings are pending. The notice under section 148 of the Act issued by the Income-tax Officer is, therefore, without jurisdiction. The same is quashed.

4. In the result, rule is made absolute in terms of prayer clause (a). No order as to costs.