Semantic Analysis by spaCy
Gangadhar Bera Vs. Assistant Commissioner of Income-tax and anr.
Decided On : Jan-13-2004
Court : Kolkata
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No. 1822 of 2003', 'appellant' => 'Gangadhar Bera', 'authreffered' => '', 'casename' => 'Gangadhar Bera Vs. Assistant Commissioner of Income-tax and anr.', 'casenote' => ' - ', 'caseanalysis' => null, 'casesref' => 'Hoosein Kasam Dada (India) Ltd. v. State of M.P.;', 'citingcases' => '', 'counselplain' => 'R. Bharadwaj, Adv.', 'counseldef' => 'P.K. Mullick, Adv.', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2004-01-13', 'deposition' => 'Petition dismissed', 'favorof' => null, 'findings' => null, 'judge' => 'Kalyan Jyoti Sengupta, J.', 'judgement' => '<p style="text-align: justify;">Kalayan Jyoti Sengupta J.</p><p style="text-align: justify;">1. This writ petition is directed against a notice dated October 21, 2002, admittedly issued under Section 143(2) of the Income-tax Act, 1961 (hereinafter referred to as the said Act). I think the text of the notice must be incorporated hereunder :</p><p style="text-align: justify;">'There are certain points in connection with the return of income submitted by you on October 29, 2001, for the assessment year 2001-2002 on which I would like some further information.</p><p style="text-align: justify;">You are hereby required to attend my office on November 11, 2002, at 12.30 p.m. either in person or by a representative duly authorised in writing in this behalf or produce or cause thereto be produced at the said time any documents, accounts and any other evidence on which you may rely in support of the return filed by you.'</p><p style="text-align: justify;">2. At the top of the aforesaid impugned notice, 'section 143(2) of the Income-tax Act, 1961' has been mentioned. This notice was issued on October 21, 2002. On receipt of this notice, the assessee/petitioner objected to the same taking a legal point that the notice is bad and invalid as it does not mention clause of the said sub-section, namely, whether Clause (i) or Clause (ii). As such this notice should be withdrawn. The Assessing Officer replied to the objection of the petitioner and clarified by a letter dated November 17, 2002, contending that the aforesaid notice was issued or intended to be issued under Section 143(2), Clause (ii). This clarificatory notice came after slightly over twelve months from the end of the month in which the return was furnished. On the aforesaid factual aspect, Mr. R. Bharadwaj, the learned advocate, led by Mr. Mihirlal Bhattacharyya, learned senior counsel, contends that the said notice is bad in law as such this was clarified by subsequent notice as above. However, this clarification came at a certain point of time when the time limit for issuance of valid and lawful notice has expired as by the proviso to the said section the time limit is mentioned as twelve months, for issuance of this notice and on the expiry of this period the Assessing Officer has no jurisdiction to issue any such notice. Therefore, the subsequent clarificatory notice is bad, invalid and of no assistance.</p><p style="text-align: justify;">3. In support of his contention, he has drawn my attention to the aforesaid proviso which reads as follows :</p><p style="text-align: justify;">'Provided further that no notice under this sub-section shall be served on the assessee after the expiry of twelve months from the end of the month in which the return is furnished.'</p><p style="text-align: justify;">4. He submits that twelve months have expired from the end of the month in which the return is made, End of the month in this case would be October 31, 2001, as the return was furnished on October 29, 2001, and this clarificatory notice came on November 17, 2002. He submits further that in fact the Department has admitted the earlier notice was bad as no clause of sub-section was quoted. In support of his submission he has relied on a few decisions, namely, Sunrolling Mills P. Ltd. v. ITO : [1986]160ITR412(Cal) , CIT v. Smt. Kaushalya : [1995]216ITR660(Bom) .</p><p style="text-align: justify;">5. He further contends though on the date of the filing of the return the relevant provision of the aforesaid Section 143 was slightly different from what is at present, in the statute book. His contention is that on the date of issuance of the notice the present provision has been in force and under the law this provision will be applicable irrespective of the date of the filing of the return which in this case is the earlier one. This portion of his submission is supported by a decision reported in Hoosein Kasam Dada (India) Ltd. v. State of M.P. [1953] 4 STC 114 (SC).</p><p style="text-align: justify;">6. On the question of suppression of fact, he says that suppression of all and every fact cannot be fatal to non-suit the petitioner. The point is whether such fact is material or relevant one. In support of his contention, he has cited Black's Law Dictionary that has defined what is material fact. In Black's Law Dictionary, 15th edition, at page 881, the words 'material fact' have been defined in relation to pleading and practice :</p><p style="text-align: justify;">'One which is essential to the case, defense, application, etc., and without which it could not be supported, One which tends to establish any of issues raised, the 'material facts' of an issue of fact are such as are necessary to determine the issue. Material fact is one upon which outcome of litigation depends.'</p><p style="text-align: justify;">7. In this case the notice, which is sought to be impugned, has not been suppressed and it has been placed. His client's act and conduct while participating in the proceeding, subsequent thereto do not constitute material fact to decide this issue. The issue is upon reading the two notices, whether the same are in consonance with the provision of law or not. According to him submitting to the jurisdiction of the officer is not the material fact or for that matter suppression thereof would not be a factor to dismiss this application in limine.</p><p style="text-align: justify;">8. Mr. P.K. Mullick, learned senior counsel appearing with Mr. R. Sinha, advocate, submits that the provision of Section 143 of the said Act at the time of filing of returns, for issuance of notice, is almost as the same it is now, notwithstanding the amendment. If the provisions of the previous Section 143(2) of the Act and Clause (ii) of the present Section 143(2) are read in juxtaposition then it will appear there is no difference, rather the provision of Clause (i) is a new insertion by way of substitution by the Finance Act, 2002, with effect from June 1, 2002. He submits that when a return was filed, the present Section 143(2) with Clause (i) was not in the statute book. He contends that two kinds of notices can be issued under the two respective Clauses (i) and (ii) under the present Section 143(2) of the Act. Notice under Clause (i) of Section 143(2) is meant for particular purpose and intent as mentioned in the clause itself. It will appear from the tenor of the language of the impugned notice that such specific purpose and intent is not reflected, therefore, it shall be presumed unmistakably the notice must have been issued under Section 143(2), Clause (ii) of the Act.</p><p style="text-align: justify;">9. Moreover he contends, that it is a mere irregularity and omission and such omission is always ignored by a court of law or any forum for that matter under the provision of Section 292B which reads as follows :</p><p style="text-align: justify;">'No return of income, assessment, notice, summons or other proceeding, furnished or made or issued or taken or purported to have been furnished or made or issued or taken in pursuance of any of the provisions of this Act shall be invalid or shall be deemed to be invalid merelyby reason of any mistake, defect or omission in such return of income, assessment, notice, summons or other proceeding if such return of income, assessment, notice, summons or other proceeding is in substance and effect in conformity with or according to the intent and purpose of this Act.'</p><p style="text-align: justify;">10. Therefore, as the officer having not mentioned Clause (ii) in the impugned notice the same cannot be said to be null and void and this should have been, having regard to the tenor of the impugned notice treated to have been issued under Clause (ii).</p><p style="text-align: justify;">11. Subsequently by a letter dated November 17, 2002, followed by January 28, 2003, this has been clarified.</p><p style="text-align: justify;">12. He contends further that there has been gross suppression of material fact that even after issuance of the aforesaid claricatory notice dated November 17, 2002, the petitioner duly appeared and participated in the hearing before the Assessing Officer and took adjournments on various grounds. Even on the date of filing of the writ petition an adjournment in writing was prayed for on the ground of his learned lawyer. Therefore, the petitioner on the one hand is giving an impression to the Assessing Officer that objection raised by him had been waived and on the other hand he has been challenging by this writ petition the aforesaid letter on the same day. This fact, according to him, has serious bearing on the adjudication of this matter as the dispute raised with regard to the notice, relates to mere irregularity for the appropriate clause having not been mentioned. It is not a type of objection, which cannot be waived. By his act and conduct this objection has been waived. Therefore, the petitioner is estopped from raising the dispute as to illegality of the impugned notice. This point is very essential and material for adjudication of this dispute.</p><p style="text-align: justify;">13. Mr. Mullick then contends that in a case of this nature this court will not exercise writ jurisdiction because there is no affectation of the right of the petitioner in this matter. If the assessment is allowed to be done with this impugned notice and the order if passed consequently, can be challenged subsequently before the appellate authority or for that matter before any other appropriate forum. Therefore, the petitioner is not left remediless. He relies on the decision of the Supreme Court reported in GKN Driveshafts (India) Ltd. v. ITO [2003] 259 ITR 19.</p><p style="text-align: justify;">14. Having considered the respective contentions of learned counsel and examined this matter the point raised herein is whether the impugned notice is bad in law or not. From the tenor of the notice I find it had been issued in general terms not for any specific purpose. Mr. P. K. Mullick has rightly said that the notice which is required to be served under the Clause (i) of Section 143(2) of the said Act must be specific with the object and intent mentioned therein whereas Clause (ii) provides for issuance of general notice after return under Section 139 of the Act is filed.</p><p style="text-align: justify;">15. The provision of Clause (ii) of the present section is almost the same as it was in previous Section 143(2) of the said Act at the time of the filing of the return, viz., October 31, 2001. The decision cited by Mr. Bharadwaj, namely, Hoosein Kasam Dada (India) Ltd. v. State of M.P. [1953] 4 STC 114, is wholly inapplicable in this case as in that case it was held amongst others that on the date of lis being pending the law then prevailing shall be applicable. The aforesaid decision has explained when the lis is deemed to be pending. It is when the return of the assessee is taken up for hearing for assessment or even before hearing of the assessment. In my view the lis is treated to be pending on and from the date of filing of returns in the event such returns are not accepted by the Assessing Officer and he decides to examine and hear. In this case the Assessing Officer has issued a notice in relation to the return filed by the petitioner. Therefore, the date of the lis being pending in this case should be reckoned on the date of filing of the returns, viz., October 29, 2001. Mr. Mullick rightly said that the provisions of the present Clauses (i) and Clause (ii) of the said section is not applicable in this case rather the previous Section 143(2) was applicable. In any view of the matter this does not make any difference in substance, as the provision of Clause (ii) of Section 143(2) of the said Act is almost the same as it was in Section 143(2) before June 1, 2002. The previous Section 143(2) is reproduced hereunder :</p><p style="text-align: justify;">'143(2) Where a return has been made under Section 139, or in response to a notice under Sub-section (1) of Section 142, the Assessing Officer, shall, if he considers it necessary or expedient to ensure that the assessee has not understated the income or has not computed excessive loss or has not underpaid the tax in any manner, serve on the assessee a notice requiring him, on a date to be specified therein, either to attend his office or to produce, or cause to be produced there, any evidence on which the assessee may rely in support of the return.'</p><p style="text-align: justify;">16. The contention of Mr. Bharadwaj is that as twelve months have already expired, the assessing authority has no jurisdiction to issue either any fresh notice or to clarify it. I am unable to accept this submission. Twelve months expired on October 31, 2002, computing from October 31, 2001, being the end of the month in which the return was filed. This proviso puts a time limit to issue notice which indeed was done, no embargo in the Act can be found to make correction or clarification of the notice. The impugned notice is not bad in law for the specific clause having not been mentioned. Particularly, when the text thereof substantially makes the intention clear as to why and for what purpose the notice was served. I have quoted the text of the notice and which, it appears, without any mistake makes the intention clear for general purpose, not for specific purpose as required under Clause (i). The effect of the clarification of any document is always retrospective, therefore, this would relate back to the date of the notice. The clarificatory notice has got no independent existence. It is mere addendum to the original one, besides this type of mistake or slip gets immunity under the provisions of Section 292B of the said Act, which is quoted hereunder, as appropriately urged Mr. Mullick.</p><p style="text-align: justify;">'292B. No return of income, assessment, notice, summons or other proceeding, furnished or made or issued or taken or purported to have been furnished or made or issued or taken in pursuance of any of the provisions of this Act shall be invalid or shall be deemed to be invalid merely by reason of any mistake, defect or omission in such return of income, assessment, notice, summons or other proceeding if such return of income, assessment, notice, summons or other proceeding is in substance and effect in conformity with or according to the intent and purpose of this Act.'</p><p style="text-align: justify;">17. Therefore, the judgment cited by Mr. Bharadwaj, namely, Sunrolling Mills P. Ltd. v. ITO : [1986]160ITR412(Cal) ; CIT v. Smt. Kaushalya : [1995]216ITR660(Bom) are wholly inappropriate in this case. Sunrolling Mills P. Ltd. v. ITO : [1986]160ITR412(Cal) dealt with the cases of reassessment under Sections 147 and 148 of the Act. The statute has provided the preconditions for assumption of jurisdiction in case of reassessment. Here is not such a case as I have indicated above. Similarly, the next one, in CIT v. Smt. Kaushalya : [1995]216ITR660(Bom) deals with the vague notice. The principle laid down therein is that the notice must be specific so that one can understand to act upon and this proposition is not disputed. But that does not mean a slip or error not being fatal and having clear substance in the notice cannot be corrected under Section 292B as quoted above. Besides, there is another relevant and pertinent point, namely the suppression of material facts. I accept the argument of Mr. Bharadwaj that suppression of all facts and every fact cannot be fatal to dislodge suitor from the track of due process of law. Only question is whether the facts suppressed are material or not, meaning thereby as rightly contended by Mr. Bharadwaj on the strength of the expression and/or meaning 'material' given in the Black's Law Dictionary, fifteenth edition, the facts which are germane to the issue of lis. It is true that the question here relates to the legality and validity of the notice under Section 143, Sub-section (2). But I think the act and conduct subsequent to the issuance of notice and immediately before filing of the writ petition or on the date of filing is relevant and/or material. It is a well-established principle of law in the public law filed as rightly contended by Mr. Mullick that clear and fair disclosure of the act and conduct of the litigant is a paramount condition to invoke extraordinary jurisdiction. A litigant must disclose rather place all his cards either in his favour or against before the court relating to or concerning with every detail of the matter up to the date of filing as the writ court ordinarily does not have any occasion to call for witness action. Unless all the facts and circumstances are placed before the writ court, it finds it difficult to adjudicate the matter and that is why the disclosure of all the facts, having relevancy to the cause of action and the reliefs sought for is necessary.</p><p style="text-align: justify;">18. As I have already observed that the objection raised by the petitioner is a waivable objection, the basis of this objection is non-mentioning of Clause (i). The object of mentioning of this clause of the said section is to make the noticee understand. If by the tenor and text of the notice makes the mind of the noticee clear what is to be done, then specific mentioning of Clause (ii) is a mere technical formality.</p><p style="text-align: justify;">19. Subsequent to both the clarificatory notices the writ petitioner admittedly appealed before the Assessing Officer and did not persist with his objection even subsequently on the date of filing of the writ petition. Two letters of adjournment of the writ petitioners do not have any mention or whisper in the body of the writ petition nor even in the affidavit in reply even after point being taken in the affidavit-in-opposition in specific terms, presuming that those two letters are of no value and are not material as contended by Mr. Bharadwaj in his argument. The law laid down in the decision of the apex court reported in [1994] 1 SCC 393 is undisputed, but this is not applicable in this case.</p><p style="text-align: justify;">20. His client's thinking is wishful and hardly helpful. Subsequent act and conduct as above without reservation amounts to waiver of objection of a technical nature. Therefore, I am of the view that the aforesaid facts together with the documents ought to have been disclosed in the writ petition or at least in the affidavit-in-reply. I do not hesitate to comment that this has not been done with the element of arrogance. Therefore, I hold that this is a gross suppression of material fact to non-suit the litigant in the public law field.</p><p style="text-align: justify;">21. Taking together as a whole as above I dismiss the writ petition. Because of impressive argument made by Mr. Bharadwaj with best of his ability, I refrain from awarding costs. Otherwise it would have been so.</p><p style="text-align: justify;">22. 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No. 1822 of 2003', 'appellant' => 'Gangadhar Bera', 'authreffered' => '', 'casename' => 'Gangadhar Bera Vs. Assistant Commissioner of Income-tax and anr.', 'casenote' => ' - ', 'caseanalysis' => null, 'casesref' => 'Hoosein Kasam Dada (India) Ltd. v. State of M.P.;', 'citingcases' => '', 'counselplain' => 'R. Bharadwaj, Adv.', 'counseldef' => 'P.K. Mullick, Adv.', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2004-01-13', 'deposition' => 'Petition dismissed', 'favorof' => null, 'findings' => null, 'judge' => 'Kalyan Jyoti Sengupta, J.', 'judgement' => '<p style="text-align: justify;">Kalayan Jyoti Sengupta J.</p><p style="text-align: justify;">1. This writ petition is directed against a notice dated October 21, 2002, admittedly issued under Section 143(2) of the Income-tax Act, 1961 (hereinafter referred to as the said Act). I think the text of the notice must be incorporated hereunder :</p><p style="text-align: justify;">'There are certain points in connection with the return of income submitted by you on October 29, 2001, for the assessment year 2001-2002 on which I would like some further information.</p><p style="text-align: justify;">You are hereby required to attend my office on November 11, 2002, at 12.30 p.m. either in person or by a representative duly authorised in writing in this behalf or produce or cause thereto be produced at the said time any documents, accounts and any other evidence on which you may rely in support of the return filed by you.'</p><p style="text-align: justify;">2. At the top of the aforesaid impugned notice, 'section 143(2) of the Income-tax Act, 1961' has been mentioned. This notice was issued on October 21, 2002. On receipt of this notice, the assessee/petitioner objected to the same taking a legal point that the notice is bad and invalid as it does not mention clause of the said sub-section, namely, whether Clause (i) or Clause (ii). As such this notice should be withdrawn. The Assessing Officer replied to the objection of the petitioner and clarified by a letter dated November 17, 2002, contending that the aforesaid notice was issued or intended to be issued under Section 143(2), Clause (ii). This clarificatory notice came after slightly over twelve months from the end of the month in which the return was furnished. On the aforesaid factual aspect, Mr. R. Bharadwaj, the learned advocate, led by Mr. Mihirlal Bhattacharyya, learned senior counsel, contends that the said notice is bad in law as such this was clarified by subsequent notice as above. However, this clarification came at a certain point of time when the time limit for issuance of valid and lawful notice has expired as by the proviso to the said section the time limit is mentioned as twelve months, for issuance of this notice and on the expiry of this period the Assessing Officer has no jurisdiction to issue any such notice. Therefore, the subsequent clarificatory notice is bad, invalid and of no assistance.</p><p style="text-align: justify;">3. In support of his contention, he has drawn my attention to the aforesaid proviso which reads as follows :</p><p style="text-align: justify;">'Provided further that no notice under this sub-section shall be served on the assessee after the expiry of twelve months from the end of the month in which the return is furnished.'</p><p style="text-align: justify;">4. He submits that twelve months have expired from the end of the month in which the return is made, End of the month in this case would be October 31, 2001, as the return was furnished on October 29, 2001, and this clarificatory notice came on November 17, 2002. He submits further that in fact the Department has admitted the earlier notice was bad as no clause of sub-section was quoted. In support of his submission he has relied on a few decisions, namely, Sunrolling Mills P. Ltd. v. ITO : [1986]160ITR412(Cal) , CIT v. Smt. Kaushalya : [1995]216ITR660(Bom) .</p><p style="text-align: justify;">5. He further contends though on the date of the filing of the return the relevant provision of the aforesaid Section 143 was slightly different from what is at present, in the statute book. His contention is that on the date of issuance of the notice the present provision has been in force and under the law this provision will be applicable irrespective of the date of the filing of the return which in this case is the earlier one. This portion of his submission is supported by a decision reported in Hoosein Kasam Dada (India) Ltd. v. State of M.P. [1953] 4 STC 114 (SC).</p><p style="text-align: justify;">6. On the question of suppression of fact, he says that suppression of all and every fact cannot be fatal to non-suit the petitioner. The point is whether such fact is material or relevant one. In support of his contention, he has cited Black's Law Dictionary that has defined what is material fact. In Black's Law Dictionary, 15th edition, at page 881, the words 'material fact' have been defined in relation to pleading and practice :</p><p style="text-align: justify;">'One which is essential to the case, defense, application, etc., and without which it could not be supported, One which tends to establish any of issues raised, the 'material facts' of an issue of fact are such as are necessary to determine the issue. Material fact is one upon which outcome of litigation depends.'</p><p style="text-align: justify;">7. In this case the notice, which is sought to be impugned, has not been suppressed and it has been placed. His client's act and conduct while participating in the proceeding, subsequent thereto do not constitute material fact to decide this issue. The issue is upon reading the two notices, whether the same are in consonance with the provision of law or not. According to him submitting to the jurisdiction of the officer is not the material fact or for that matter suppression thereof would not be a factor to dismiss this application in limine.</p><p style="text-align: justify;">8. Mr. P.K. Mullick, learned senior counsel appearing with Mr. R. Sinha, advocate, submits that the provision of Section 143 of the said Act at the time of filing of returns, for issuance of notice, is almost as the same it is now, notwithstanding the amendment. If the provisions of the previous Section 143(2) of the Act and Clause (ii) of the present Section 143(2) are read in juxtaposition then it will appear there is no difference, rather the provision of Clause (i) is a new insertion by way of substitution by the Finance Act, 2002, with effect from June 1, 2002. He submits that when a return was filed, the present Section 143(2) with Clause (i) was not in the statute book. He contends that two kinds of notices can be issued under the two respective Clauses (i) and (ii) under the present Section 143(2) of the Act. Notice under Clause (i) of Section 143(2) is meant for particular purpose and intent as mentioned in the clause itself. It will appear from the tenor of the language of the impugned notice that such specific purpose and intent is not reflected, therefore, it shall be presumed unmistakably the notice must have been issued under Section 143(2), Clause (ii) of the Act.</p><p style="text-align: justify;">9. Moreover he contends, that it is a mere irregularity and omission and such omission is always ignored by a court of law or any forum for that matter under the provision of Section 292B which reads as follows :</p><p style="text-align: justify;">'No return of income, assessment, notice, summons or other proceeding, furnished or made or issued or taken or purported to have been furnished or made or issued or taken in pursuance of any of the provisions of this Act shall be invalid or shall be deemed to be invalid merelyby reason of any mistake, defect or omission in such return of income, assessment, notice, summons or other proceeding if such return of income, assessment, notice, summons or other proceeding is in substance and effect in conformity with or according to the intent and purpose of this Act.'</p><p style="text-align: justify;">10. Therefore, as the officer having not mentioned Clause (ii) in the impugned notice the same cannot be said to be null and void and this should have been, having regard to the tenor of the impugned notice treated to have been issued under Clause (ii).</p><p style="text-align: justify;">11. Subsequently by a letter dated November 17, 2002, followed by January 28, 2003, this has been clarified.</p><p style="text-align: justify;">12. He contends further that there has been gross suppression of material fact that even after issuance of the aforesaid claricatory notice dated November 17, 2002, the petitioner duly appeared and participated in the hearing before the Assessing Officer and took adjournments on various grounds. Even on the date of filing of the writ petition an adjournment in writing was prayed for on the ground of his learned lawyer. Therefore, the petitioner on the one hand is giving an impression to the Assessing Officer that objection raised by him had been waived and on the other hand he has been challenging by this writ petition the aforesaid letter on the same day. This fact, according to him, has serious bearing on the adjudication of this matter as the dispute raised with regard to the notice, relates to mere irregularity for the appropriate clause having not been mentioned. It is not a type of objection, which cannot be waived. By his act and conduct this objection has been waived. Therefore, the petitioner is estopped from raising the dispute as to illegality of the impugned notice. This point is very essential and material for adjudication of this dispute.</p><p style="text-align: justify;">13. Mr. Mullick then contends that in a case of this nature this court will not exercise writ jurisdiction because there is no affectation of the right of the petitioner in this matter. If the assessment is allowed to be done with this impugned notice and the order if passed consequently, can be challenged subsequently before the appellate authority or for that matter before any other appropriate forum. Therefore, the petitioner is not left remediless. He relies on the decision of the Supreme Court reported in GKN Driveshafts (India) Ltd. v. ITO [2003] 259 ITR 19.</p><p style="text-align: justify;">14. Having considered the respective contentions of learned counsel and examined this matter the point raised herein is whether the impugned notice is bad in law or not. From the tenor of the notice I find it had been issued in general terms not for any specific purpose. Mr. P. K. Mullick has rightly said that the notice which is required to be served under the Clause (i) of Section 143(2) of the said Act must be specific with the object and intent mentioned therein whereas Clause (ii) provides for issuance of general notice after return under Section 139 of the Act is filed.</p><p style="text-align: justify;">15. The provision of Clause (ii) of the present section is almost the same as it was in previous Section 143(2) of the said Act at the time of the filing of the return, viz., October 31, 2001. The decision cited by Mr. Bharadwaj, namely, Hoosein Kasam Dada (India) Ltd. v. State of M.P. [1953] 4 STC 114, is wholly inapplicable in this case as in that case it was held amongst others that on the date of lis being pending the law then prevailing shall be applicable. The aforesaid decision has explained when the lis is deemed to be pending. It is when the return of the assessee is taken up for hearing for assessment or even before hearing of the assessment. In my view the lis is treated to be pending on and from the date of filing of returns in the event such returns are not accepted by the Assessing Officer and he decides to examine and hear. In this case the Assessing Officer has issued a notice in relation to the return filed by the petitioner. Therefore, the date of the lis being pending in this case should be reckoned on the date of filing of the returns, viz., October 29, 2001. Mr. Mullick rightly said that the provisions of the present Clauses (i) and Clause (ii) of the said section is not applicable in this case rather the previous Section 143(2) was applicable. In any view of the matter this does not make any difference in substance, as the provision of Clause (ii) of Section 143(2) of the said Act is almost the same as it was in Section 143(2) before June 1, 2002. The previous Section 143(2) is reproduced hereunder :</p><p style="text-align: justify;">'143(2) Where a return has been made under Section 139, or in response to a notice under Sub-section (1) of Section 142, the Assessing Officer, shall, if he considers it necessary or expedient to ensure that the assessee has not understated the income or has not computed excessive loss or has not underpaid the tax in any manner, serve on the assessee a notice requiring him, on a date to be specified therein, either to attend his office or to produce, or cause to be produced there, any evidence on which the assessee may rely in support of the return.'</p><p style="text-align: justify;">16. The contention of Mr. Bharadwaj is that as twelve months have already expired, the assessing authority has no jurisdiction to issue either any fresh notice or to clarify it. I am unable to accept this submission. Twelve months expired on October 31, 2002, computing from October 31, 2001, being the end of the month in which the return was filed. This proviso puts a time limit to issue notice which indeed was done, no embargo in the Act can be found to make correction or clarification of the notice. The impugned notice is not bad in law for the specific clause having not been mentioned. Particularly, when the text thereof substantially makes the intention clear as to why and for what purpose the notice was served. I have quoted the text of the notice and which, it appears, without any mistake makes the intention clear for general purpose, not for specific purpose as required under Clause (i). The effect of the clarification of any document is always retrospective, therefore, this would relate back to the date of the notice. The clarificatory notice has got no independent existence. It is mere addendum to the original one, besides this type of mistake or slip gets immunity under the provisions of Section 292B of the said Act, which is quoted hereunder, as appropriately urged Mr. Mullick.</p><p style="text-align: justify;">'292B. No return of income, assessment, notice, summons or other proceeding, furnished or made or issued or taken or purported to have been furnished or made or issued or taken in pursuance of any of the provisions of this Act shall be invalid or shall be deemed to be invalid merely by reason of any mistake, defect or omission in such return of income, assessment, notice, summons or other proceeding if such return of income, assessment, notice, summons or other proceeding is in substance and effect in conformity with or according to the intent and purpose of this Act.'</p><p style="text-align: justify;">17. Therefore, the judgment cited by Mr. Bharadwaj, namely, Sunrolling Mills P. Ltd. v. ITO : [1986]160ITR412(Cal) ; CIT v. Smt. Kaushalya : [1995]216ITR660(Bom) are wholly inappropriate in this case. Sunrolling Mills P. Ltd. v. ITO : [1986]160ITR412(Cal) dealt with the cases of reassessment under Sections 147 and 148 of the Act. The statute has provided the preconditions for assumption of jurisdiction in case of reassessment. Here is not such a case as I have indicated above. Similarly, the next one, in CIT v. Smt. Kaushalya : [1995]216ITR660(Bom) deals with the vague notice. The principle laid down therein is that the notice must be specific so that one can understand to act upon and this proposition is not disputed. But that does not mean a slip or error not being fatal and having clear substance in the notice cannot be corrected under Section 292B as quoted above. Besides, there is another relevant and pertinent point, namely the suppression of material facts. I accept the argument of Mr. Bharadwaj that suppression of all facts and every fact cannot be fatal to dislodge suitor from the track of due process of law. Only question is whether the facts suppressed are material or not, meaning thereby as rightly contended by Mr. Bharadwaj on the strength of the expression and/or meaning 'material' given in the Black's Law Dictionary, fifteenth edition, the facts which are germane to the issue of lis. It is true that the question here relates to the legality and validity of the notice under Section 143, Sub-section (2). But I think the act and conduct subsequent to the issuance of notice and immediately before filing of the writ petition or on the date of filing is relevant and/or material. It is a well-established principle of law in the public law filed as rightly contended by Mr. Mullick that clear and fair disclosure of the act and conduct of the litigant is a paramount condition to invoke extraordinary jurisdiction. A litigant must disclose rather place all his cards either in his favour or against before the court relating to or concerning with every detail of the matter up to the date of filing as the writ court ordinarily does not have any occasion to call for witness action. Unless all the facts and circumstances are placed before the writ court, it finds it difficult to adjudicate the matter and that is why the disclosure of all the facts, having relevancy to the cause of action and the reliefs sought for is necessary.</p><p style="text-align: justify;">18. As I have already observed that the objection raised by the petitioner is a waivable objection, the basis of this objection is non-mentioning of Clause (i). The object of mentioning of this clause of the said section is to make the noticee understand. If by the tenor and text of the notice makes the mind of the noticee clear what is to be done, then specific mentioning of Clause (ii) is a mere technical formality.</p><p style="text-align: justify;">19. Subsequent to both the clarificatory notices the writ petitioner admittedly appealed before the Assessing Officer and did not persist with his objection even subsequently on the date of filing of the writ petition. Two letters of adjournment of the writ petitioners do not have any mention or whisper in the body of the writ petition nor even in the affidavit in reply even after point being taken in the affidavit-in-opposition in specific terms, presuming that those two letters are of no value and are not material as contended by Mr. Bharadwaj in his argument. The law laid down in the decision of the apex court reported in [1994] 1 SCC 393 is undisputed, but this is not applicable in this case.</p><p style="text-align: justify;">20. His client's thinking is wishful and hardly helpful. Subsequent act and conduct as above without reservation amounts to waiver of objection of a technical nature. Therefore, I am of the view that the aforesaid facts together with the documents ought to have been disclosed in the writ petition or at least in the affidavit-in-reply. I do not hesitate to comment that this has not been done with the element of arrogance. Therefore, I hold that this is a gross suppression of material fact to non-suit the litigant in the public law field.</p><p style="text-align: justify;">21. Taking together as a whole as above I dismiss the writ petition. Because of impressive argument made by Mr. Bharadwaj with best of his ability, I refrain from awarding costs. Otherwise it would have been so.</p><p style="text-align: justify;">22. 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No. 1822 of 2003', 'appellant' => 'Gangadhar Bera', 'authreffered' => '', 'casename' => 'Gangadhar Bera Vs. Assistant Commissioner of Income-tax and anr.', 'casenote' => ' - ', 'caseanalysis' => null, 'casesref' => 'Hoosein Kasam Dada (India) Ltd. v. State of M.P.;', 'citingcases' => '', 'counselplain' => 'R. Bharadwaj, Adv.', 'counseldef' => 'P.K. Mullick, Adv.', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2004-01-13', 'deposition' => 'Petition dismissed', 'favorof' => null, 'findings' => null, 'judge' => 'Kalyan Jyoti Sengupta, J.', 'judgement' => '<p style="text-align: justify;">Kalayan Jyoti Sengupta J.</p><p style="text-align: justify;">1. This writ petition is directed against a notice dated October 21, 2002, admittedly issued under Section 143(2) of the Income-tax Act, 1961 (hereinafter referred to as the said Act). I think the text of the notice must be incorporated hereunder :</p><p style="text-align: justify;">'There are certain points in connection with the return of income submitted by you on October 29, 2001, for the assessment year 2001-2002 on which I would like some further information.</p><p style="text-align: justify;">You are hereby required to attend my office on November 11, 2002, at 12.30 p.m. either in person or by a representative duly authorised in writing in this behalf or produce or cause thereto be produced at the said time any documents, accounts and any other evidence on which you may rely in support of the return filed by you.'</p><p style="text-align: justify;">2. At the top of the aforesaid impugned notice, 'section 143(2) of the Income-tax Act, 1961' has been mentioned. This notice was issued on October 21, 2002. On receipt of this notice, the assessee/petitioner objected to the same taking a legal point that the notice is bad and invalid as it does not mention clause of the said sub-section, namely, whether Clause (i) or Clause (ii). As such this notice should be withdrawn. The Assessing Officer replied to the objection of the petitioner and clarified by a letter dated November 17, 2002, contending that the aforesaid notice was issued or intended to be issued under Section 143(2), Clause (ii). This clarificatory notice came after slightly over twelve months from the end of the month in which the return was furnished. On the aforesaid factual aspect, Mr. R. Bharadwaj, the learned advocate, led by Mr. Mihirlal Bhattacharyya, learned senior counsel, contends that the said notice is bad in law as such this was clarified by subsequent notice as above. However, this clarification came at a certain point of time when the time limit for issuance of valid and lawful notice has expired as by the proviso to the said section the time limit is mentioned as twelve months, for issuance of this notice and on the expiry of this period the Assessing Officer has no jurisdiction to issue any such notice. Therefore, the subsequent clarificatory notice is bad, invalid and of no assistance.</p><p style="text-align: justify;">3. In support of his contention, he has drawn my attention to the aforesaid proviso which reads as follows :</p><p style="text-align: justify;">'Provided further that no notice under this sub-section shall be served on the assessee after the expiry of twelve months from the end of the month in which the return is furnished.'</p><p style="text-align: justify;">4. He submits that twelve months have expired from the end of the month in which the return is made, End of the month in this case would be October 31, 2001, as the return was furnished on October 29, 2001, and this clarificatory notice came on November 17, 2002. He submits further that in fact the Department has admitted the earlier notice was bad as no clause of sub-section was quoted. In support of his submission he has relied on a few decisions, namely, Sunrolling Mills P. Ltd. v. ITO : [1986]160ITR412(Cal) , CIT v. Smt. Kaushalya : [1995]216ITR660(Bom) .</p><p style="text-align: justify;">5. He further contends though on the date of the filing of the return the relevant provision of the aforesaid Section 143 was slightly different from what is at present, in the statute book. His contention is that on the date of issuance of the notice the present provision has been in force and under the law this provision will be applicable irrespective of the date of the filing of the return which in this case is the earlier one. This portion of his submission is supported by a decision reported in Hoosein Kasam Dada (India) Ltd. v. State of M.P. [1953] 4 STC 114 (SC).</p><p style="text-align: justify;">6. On the question of suppression of fact, he says that suppression of all and every fact cannot be fatal to non-suit the petitioner. The point is whether such fact is material or relevant one. In support of his contention, he has cited Black's Law Dictionary that has defined what is material fact. In Black's Law Dictionary, 15th edition, at page 881, the words 'material fact' have been defined in relation to pleading and practice :</p><p style="text-align: justify;">'One which is essential to the case, defense, application, etc., and without which it could not be supported, One which tends to establish any of issues raised, the 'material facts' of an issue of fact are such as are necessary to determine the issue. Material fact is one upon which outcome of litigation depends.'</p><p style="text-align: justify;">7. In this case the notice, which is sought to be impugned, has not been suppressed and it has been placed. His client's act and conduct while participating in the proceeding, subsequent thereto do not constitute material fact to decide this issue. The issue is upon reading the two notices, whether the same are in consonance with the provision of law or not. According to him submitting to the jurisdiction of the officer is not the material fact or for that matter suppression thereof would not be a factor to dismiss this application in limine.</p><p style="text-align: justify;">8. Mr. P.K. Mullick, learned senior counsel appearing with Mr. R. Sinha, advocate, submits that the provision of Section 143 of the said Act at the time of filing of returns, for issuance of notice, is almost as the same it is now, notwithstanding the amendment. If the provisions of the previous Section 143(2) of the Act and Clause (ii) of the present Section 143(2) are read in juxtaposition then it will appear there is no difference, rather the provision of Clause (i) is a new insertion by way of substitution by the Finance Act, 2002, with effect from June 1, 2002. He submits that when a return was filed, the present Section 143(2) with Clause (i) was not in the statute book. He contends that two kinds of notices can be issued under the two respective Clauses (i) and (ii) under the present Section 143(2) of the Act. Notice under Clause (i) of Section 143(2) is meant for particular purpose and intent as mentioned in the clause itself. It will appear from the tenor of the language of the impugned notice that such specific purpose and intent is not reflected, therefore, it shall be presumed unmistakably the notice must have been issued under Section 143(2), Clause (ii) of the Act.</p><p style="text-align: justify;">9. Moreover he contends, that it is a mere irregularity and omission and such omission is always ignored by a court of law or any forum for that matter under the provision of Section 292B which reads as follows :</p><p style="text-align: justify;">'No return of income, assessment, notice, summons or other proceeding, furnished or made or issued or taken or purported to have been furnished or made or issued or taken in pursuance of any of the provisions of this Act shall be invalid or shall be deemed to be invalid merelyby reason of any mistake, defect or omission in such return of income, assessment, notice, summons or other proceeding if such return of income, assessment, notice, summons or other proceeding is in substance and effect in conformity with or according to the intent and purpose of this Act.'</p><p style="text-align: justify;">10. Therefore, as the officer having not mentioned Clause (ii) in the impugned notice the same cannot be said to be null and void and this should have been, having regard to the tenor of the impugned notice treated to have been issued under Clause (ii).</p><p style="text-align: justify;">11. Subsequently by a letter dated November 17, 2002, followed by January 28, 2003, this has been clarified.</p><p style="text-align: justify;">12. He contends further that there has been gross suppression of material fact that even after issuance of the aforesaid claricatory notice dated November 17, 2002, the petitioner duly appeared and participated in the hearing before the Assessing Officer and took adjournments on various grounds. Even on the date of filing of the writ petition an adjournment in writing was prayed for on the ground of his learned lawyer. Therefore, the petitioner on the one hand is giving an impression to the Assessing Officer that objection raised by him had been waived and on the other hand he has been challenging by this writ petition the aforesaid letter on the same day. This fact, according to him, has serious bearing on the adjudication of this matter as the dispute raised with regard to the notice, relates to mere irregularity for the appropriate clause having not been mentioned. It is not a type of objection, which cannot be waived. By his act and conduct this objection has been waived. Therefore, the petitioner is estopped from raising the dispute as to illegality of the impugned notice. This point is very essential and material for adjudication of this dispute.</p><p style="text-align: justify;">13. Mr. Mullick then contends that in a case of this nature this court will not exercise writ jurisdiction because there is no affectation of the right of the petitioner in this matter. If the assessment is allowed to be done with this impugned notice and the order if passed consequently, can be challenged subsequently before the appellate authority or for that matter before any other appropriate forum. Therefore, the petitioner is not left remediless. He relies on the decision of the Supreme Court reported in GKN Driveshafts (India) Ltd. v. ITO [2003] 259 ITR 19.</p><p style="text-align: justify;">14. Having considered the respective contentions of learned counsel and examined this matter the point raised herein is whether the impugned notice is bad in law or not. From the tenor of the notice I find it had been issued in general terms not for any specific purpose. Mr. P. K. Mullick has rightly said that the notice which is required to be served under the Clause (i) of Section 143(2) of the said Act must be specific with the object and intent mentioned therein whereas Clause (ii) provides for issuance of general notice after return under Section 139 of the Act is filed.</p><p style="text-align: justify;">15. The provision of Clause (ii) of the present section is almost the same as it was in previous Section 143(2) of the said Act at the time of the filing of the return, viz., October 31, 2001. The decision cited by Mr. Bharadwaj, namely, Hoosein Kasam Dada (India) Ltd. v. State of M.P. [1953] 4 STC 114, is wholly inapplicable in this case as in that case it was held amongst others that on the date of lis being pending the law then prevailing shall be applicable. The aforesaid decision has explained when the lis is deemed to be pending. It is when the return of the assessee is taken up for hearing for assessment or even before hearing of the assessment. In my view the lis is treated to be pending on and from the date of filing of returns in the event such returns are not accepted by the Assessing Officer and he decides to examine and hear. In this case the Assessing Officer has issued a notice in relation to the return filed by the petitioner. Therefore, the date of the lis being pending in this case should be reckoned on the date of filing of the returns, viz., October 29, 2001. Mr. Mullick rightly said that the provisions of the present Clauses (i) and Clause (ii) of the said section is not applicable in this case rather the previous Section 143(2) was applicable. In any view of the matter this does not make any difference in substance, as the provision of Clause (ii) of Section 143(2) of the said Act is almost the same as it was in Section 143(2) before June 1, 2002. The previous Section 143(2) is reproduced hereunder :</p><p style="text-align: justify;">'143(2) Where a return has been made under Section 139, or in response to a notice under Sub-section (1) of Section 142, the Assessing Officer, shall, if he considers it necessary or expedient to ensure that the assessee has not understated the income or has not computed excessive loss or has not underpaid the tax in any manner, serve on the assessee a notice requiring him, on a date to be specified therein, either to attend his office or to produce, or cause to be produced there, any evidence on which the assessee may rely in support of the return.'</p><p style="text-align: justify;">16. The contention of Mr. Bharadwaj is that as twelve months have already expired, the assessing authority has no jurisdiction to issue either any fresh notice or to clarify it. I am unable to accept this submission. Twelve months expired on October 31, 2002, computing from October 31, 2001, being the end of the month in which the return was filed. This proviso puts a time limit to issue notice which indeed was done, no embargo in the Act can be found to make correction or clarification of the notice. The impugned notice is not bad in law for the specific clause having not been mentioned. Particularly, when the text thereof substantially makes the intention clear as to why and for what purpose the notice was served. I have quoted the text of the notice and which, it appears, without any mistake makes the intention clear for general purpose, not for specific purpose as required under Clause (i). The effect of the clarification of any document is always retrospective, therefore, this would relate back to the date of the notice. The clarificatory notice has got no independent existence. It is mere addendum to the original one, besides this type of mistake or slip gets immunity under the provisions of Section 292B of the said Act, which is quoted hereunder, as appropriately urged Mr. Mullick.</p><p style="text-align: justify;">'292B. No return of income, assessment, notice, summons or other proceeding, furnished or made or issued or taken or purported to have been furnished or made or issued or taken in pursuance of any of the provisions of this Act shall be invalid or shall be deemed to be invalid merely by reason of any mistake, defect or omission in such return of income, assessment, notice, summons or other proceeding if such return of income, assessment, notice, summons or other proceeding is in substance and effect in conformity with or according to the intent and purpose of this Act.'</p><p style="text-align: justify;">17. Therefore, the judgment cited by Mr. Bharadwaj, namely, Sunrolling Mills P. Ltd. v. ITO : [1986]160ITR412(Cal) ; CIT v. Smt. Kaushalya : [1995]216ITR660(Bom) are wholly inappropriate in this case. Sunrolling Mills P. Ltd. v. ITO : [1986]160ITR412(Cal) dealt with the cases of reassessment under Sections 147 and 148 of the Act. The statute has provided the preconditions for assumption of jurisdiction in case of reassessment. Here is not such a case as I have indicated above. Similarly, the next one, in CIT v. Smt. Kaushalya : [1995]216ITR660(Bom) deals with the vague notice. The principle laid down therein is that the notice must be specific so that one can understand to act upon and this proposition is not disputed. But that does not mean a slip or error not being fatal and having clear substance in the notice cannot be corrected under Section 292B as quoted above. Besides, there is another relevant and pertinent point, namely the suppression of material facts. I accept the argument of Mr. Bharadwaj that suppression of all facts and every fact cannot be fatal to dislodge suitor from the track of due process of law. Only question is whether the facts suppressed are material or not, meaning thereby as rightly contended by Mr. Bharadwaj on the strength of the expression and/or meaning 'material' given in the Black's Law Dictionary, fifteenth edition, the facts which are germane to the issue of lis. It is true that the question here relates to the legality and validity of the notice under Section 143, Sub-section (2). But I think the act and conduct subsequent to the issuance of notice and immediately before filing of the writ petition or on the date of filing is relevant and/or material. It is a well-established principle of law in the public law filed as rightly contended by Mr. Mullick that clear and fair disclosure of the act and conduct of the litigant is a paramount condition to invoke extraordinary jurisdiction. A litigant must disclose rather place all his cards either in his favour or against before the court relating to or concerning with every detail of the matter up to the date of filing as the writ court ordinarily does not have any occasion to call for witness action. Unless all the facts and circumstances are placed before the writ court, it finds it difficult to adjudicate the matter and that is why the disclosure of all the facts, having relevancy to the cause of action and the reliefs sought for is necessary.</p><p style="text-align: justify;">18. As I have already observed that the objection raised by the petitioner is a waivable objection, the basis of this objection is non-mentioning of Clause (i). The object of mentioning of this clause of the said section is to make the noticee understand. If by the tenor and text of the notice makes the mind of the noticee clear what is to be done, then specific mentioning of Clause (ii) is a mere technical formality.</p><p style="text-align: justify;">19. Subsequent to both the clarificatory notices the writ petitioner admittedly appealed before the Assessing Officer and did not persist with his objection even subsequently on the date of filing of the writ petition. Two letters of adjournment of the writ petitioners do not have any mention or whisper in the body of the writ petition nor even in the affidavit in reply even after point being taken in the affidavit-in-opposition in specific terms, presuming that those two letters are of no value and are not material as contended by Mr. Bharadwaj in his argument. The law laid down in the decision of the apex court reported in [1994] 1 SCC 393 is undisputed, but this is not applicable in this case.</p><p style="text-align: justify;">20. His client's thinking is wishful and hardly helpful. Subsequent act and conduct as above without reservation amounts to waiver of objection of a technical nature. Therefore, I am of the view that the aforesaid facts together with the documents ought to have been disclosed in the writ petition or at least in the affidavit-in-reply. I do not hesitate to comment that this has not been done with the element of arrogance. Therefore, I hold that this is a gross suppression of material fact to non-suit the litigant in the public law field.</p><p style="text-align: justify;">21. Taking together as a whole as above I dismiss the writ petition. Because of impressive argument made by Mr. Bharadwaj with best of his ability, I refrain from awarding costs. Otherwise it would have been so.</p><p style="text-align: justify;">22. All parties are to act on a xerox signed copy of this dictated order on the usual undertaking.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(2004)190CTR(Cal)467,[2004]267ITR422(Cal)', 'ratiodecidendi' => '', 'respondent' => 'Assistant Commissioner of Income-tax and anr.', 'sub' => 'Direct Taxation', 'link' => null, 'circuit' => null ) ), 'args' => array( (int) 0 => '855507' ) ) $title_for_layout = 'Gangadhar Bera Vs. Assistant Commissioner of Income tax and anr. Semantic Analysis' $shops = array( 'LAW' => array( (int) 0 => 'Section 143(2', (int) 1 => 'Section 143(2', (int) 2 => 'Section 143', (int) 3 => 'Section 143', (int) 4 => 'Section 143(2', (int) 5 => 'Section 143(2', (int) 6 => 'the Finance Act', (int) 7 => 'Section 143(2', (int) 8 => 'Section 143(2', (int) 9 => 'Section 143(2', (int) 10 => 'Section 143(2', (int) 11 => 'Section 292B', (int) 12 => 'Section 143(2', (int) 13 => 'Section 139 of the Act', (int) 14 => 'Section 143(2', (int) 15 => 'Section 143(2', (int) 16 => 'Section 143(2', (int) 17 => 'Section 143(2', (int) 18 => 'Section 139', (int) 19 => 'Section 142', (int) 20 => 'Section 292B', (int) 21 => 'Section 292B', (int) 22 => 'Section 143' ), 'PERSON' => array( (int) 0 => 'Kalayan Jyoti Sengupta J.1', (int) 1 => 'R. Bharadwaj', (int) 2 => 'Mihirlal Bhattacharyya', (int) 3 => 'P.K. Mullick', (int) 4 => 'R. Sinha', (int) 5 => 'Mullick', (int) 6 => 'Driveshafts', (int) 7 => 'P. K. Mullick', (int) 8 => 'Bharadwaj', (int) 9 => 'Hoosein Kasam Dada', (int) 10 => 'Mullick', (int) 11 => 'Bharadwaj', (int) 12 => 'Mullick', (int) 13 => 'Bharadwaj', (int) 14 => 'Bharadwaj', (int) 15 => 'Bharadwaj', (int) 16 => 'Mullick', (int) 17 => 'Bharadwaj', (int) 18 => 'Bharadwaj' ), 'DATE' => array( (int) 0 => 'October 21, 2002', (int) 1 => '1961', (int) 2 => 'October 29, 2001', (int) 3 => 'the assessment year 2001-2002', (int) 4 => 'November 11, 2002', (int) 5 => '1961', (int) 6 => 'October 21, 2002', (int) 7 => 'November 17, 2002', (int) 8 => 'twelve months', (int) 9 => 'the end of the month', (int) 10 => 'twelve months', (int) 11 => 'twelve months', (int) 12 => 'the end of the month', (int) 13 => 'twelve months', (int) 14 => 'the end of the month', (int) 15 => 'October 31, 2001', (int) 16 => 'October 29, 2001', (int) 17 => 'November 17, 2002', (int) 18 => '1953', (int) 19 => '2002', (int) 20 => 'June 1, 2002', (int) 21 => ''10', (int) 22 => 'November 17, 2002', (int) 23 => 'January 28, 2003', (int) 24 => 'November 17, 2002', (int) 25 => 'the same day', (int) 26 => '2003', (int) 27 => 'October 31, 2001', (int) 28 => '1953', (int) 29 => 'October 29, 2001', (int) 30 => 'Section 143(2', (int) 31 => 'June 1, 2002', (int) 32 => ''16', (int) 33 => 'twelve months', (int) 34 => 'Twelve months', (int) 35 => 'October 31, 2002', (int) 36 => 'October 31, 2001', (int) 37 => 'the end of the month', (int) 38 => ''17', (int) 39 => '1994' ), 'TIME' => array( (int) 0 => '12.30 p.m.' ), 'ORG' => array( (int) 0 => 'Department', (int) 1 => 'Sunrolling Mills P. Ltd.', (int) 2 => 'ITO', (int) 3 => 'CIT', (int) 4 => 'State of M.P.', (int) 5 => 'SC).6', (int) 6 => 'Black's Law Dictionary', (int) 7 => 'Black's Law Dictionary', (int) 8 => 'Clauses', (int) 9 => 'Notice under Clause', (int) 10 => 'the Supreme Court', (int) 11 => 'ITO', (int) 12 => 'ITR', (int) 13 => 'State of M.P.', (int) 14 => 'Clauses', (int) 15 => 'Sunrolling Mills P. Ltd.', (int) 16 => 'ITO', (int) 17 => 'CIT', (int) 18 => 'Mills P. Ltd.', (int) 19 => 'ITO', (int) 20 => 'CIT', (int) 21 => 'necessary.18', (int) 22 => 'xerox' ), 'CARDINAL' => array( (int) 0 => '1986]160ITR412(Cal', (int) 1 => '1995]216ITR660(Bom', (int) 2 => '4', (int) 3 => '881', (int) 4 => 'two', (int) 5 => 'two', (int) 6 => 'two', (int) 7 => '259', (int) 8 => '19.14', (int) 9 => '4', (int) 10 => '114', (int) 11 => '1', (int) 12 => '1986]160ITR412(Cal', (int) 13 => '1995]216ITR660(Bom', (int) 14 => '1986]160ITR412(Cal', (int) 15 => '147', (int) 16 => '148', (int) 17 => '1995]216ITR660(Bom', (int) 18 => '2', (int) 19 => 'Two', (int) 20 => 'two' ), 'GPE' => array( (int) 0 => 'Hoosein Kasam Dada', (int) 1 => 'India', (int) 2 => 'India', (int) 3 => 'India' ), 'ORDINAL' => array( (int) 0 => '15th' ), 'PRODUCT' => array( (int) 0 => '1 SCC 393' ) ) $desc = array( 'Judgement' => array( 'id' => '855507', 'acts' => '<a href="/act/51330/income-tax-act-1961-complete-act">Income Tax Act, 1961</a> - Sections 143 and 143(2); ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Article 226', 'appealno' => 'W.P. No. 1822 of 2003', 'appellant' => 'Gangadhar Bera', 'authreffered' => '', 'casename' => 'Gangadhar Bera Vs. Assistant Commissioner of Income-tax and anr.', 'casenote' => ' - ', 'caseanalysis' => null, 'casesref' => 'Hoosein Kasam Dada (India) Ltd. v. State of M.P.;', 'citingcases' => '', 'counselplain' => 'R. Bharadwaj, Adv.', 'counseldef' => 'P.K. Mullick, Adv.', 'court' => 'Kolkata', 'court_type' => 'HC', 'decidedon' => '2004-01-13', 'deposition' => 'Petition dismissed', 'favorof' => null, 'findings' => null, 'judge' => 'Kalyan Jyoti Sengupta, J.', 'judgement' => '<p style="text-align: justify;">Kalayan Jyoti Sengupta J.</p><p style="text-align: justify;">1. This writ petition is directed against a notice dated October 21, 2002, admittedly issued under Section 143(2) of the Income-tax Act, 1961 (hereinafter referred to as the said Act). I think the text of the notice must be incorporated hereunder :</p><p style="text-align: justify;">'There are certain points in connection with the return of income submitted by you on October 29, 2001, for the assessment year 2001-2002 on which I would like some further information.</p><p style="text-align: justify;">You are hereby required to attend my office on November 11, 2002, at 12.30 p.m. either in person or by a representative duly authorised in writing in this behalf or produce or cause thereto be produced at the said time any documents, accounts and any other evidence on which you may rely in support of the return filed by you.'</p><p style="text-align: justify;">2. At the top of the aforesaid impugned notice, 'section 143(2) of the Income-tax Act, 1961' has been mentioned. This notice was issued on October 21, 2002. On receipt of this notice, the assessee/petitioner objected to the same taking a legal point that the notice is bad and invalid as it does not mention clause of the said sub-section, namely, whether Clause (i) or Clause (ii). As such this notice should be withdrawn. The Assessing Officer replied to the objection of the petitioner and clarified by a letter dated November 17, 2002, contending that the aforesaid notice was issued or intended to be issued under Section 143(2), Clause (ii). This clarificatory notice came after slightly over twelve months from the end of the month in which the return was furnished. On the aforesaid factual aspect, Mr. R. Bharadwaj, the learned advocate, led by Mr. Mihirlal Bhattacharyya, learned senior counsel, contends that the said notice is bad in law as such this was clarified by subsequent notice as above. However, this clarification came at a certain point of time when the time limit for issuance of valid and lawful notice has expired as by the proviso to the said section the time limit is mentioned as twelve months, for issuance of this notice and on the expiry of this period the Assessing Officer has no jurisdiction to issue any such notice. Therefore, the subsequent clarificatory notice is bad, invalid and of no assistance.</p><p style="text-align: justify;">3. In support of his contention, he has drawn my attention to the aforesaid proviso which reads as follows :</p><p style="text-align: justify;">'Provided further that no notice under this sub-section shall be served on the assessee after the expiry of twelve months from the end of the month in which the return is furnished.'</p><p style="text-align: justify;">4. He submits that twelve months have expired from the end of the month in which the return is made, End of the month in this case would be October 31, 2001, as the return was furnished on October 29, 2001, and this clarificatory notice came on November 17, 2002. He submits further that in fact the Department has admitted the earlier notice was bad as no clause of sub-section was quoted. In support of his submission he has relied on a few decisions, namely, Sunrolling Mills P. Ltd. v. ITO : [1986]160ITR412(Cal) , CIT v. Smt. Kaushalya : [1995]216ITR660(Bom) .</p><p style="text-align: justify;">5. He further contends though on the date of the filing of the return the relevant provision of the aforesaid Section 143 was slightly different from what is at present, in the statute book. His contention is that on the date of issuance of the notice the present provision has been in force and under the law this provision will be applicable irrespective of the date of the filing of the return which in this case is the earlier one. This portion of his submission is supported by a decision reported in Hoosein Kasam Dada (India) Ltd. v. State of M.P. [1953] 4 STC 114 (SC).</p><p style="text-align: justify;">6. On the question of suppression of fact, he says that suppression of all and every fact cannot be fatal to non-suit the petitioner. The point is whether such fact is material or relevant one. In support of his contention, he has cited Black's Law Dictionary that has defined what is material fact. In Black's Law Dictionary, 15th edition, at page 881, the words 'material fact' have been defined in relation to pleading and practice :</p><p style="text-align: justify;">'One which is essential to the case, defense, application, etc., and without which it could not be supported, One which tends to establish any of issues raised, the 'material facts' of an issue of fact are such as are necessary to determine the issue. Material fact is one upon which outcome of litigation depends.'</p><p style="text-align: justify;">7. In this case the notice, which is sought to be impugned, has not been suppressed and it has been placed. His client's act and conduct while participating in the proceeding, subsequent thereto do not constitute material fact to decide this issue. The issue is upon reading the two notices, whether the same are in consonance with the provision of law or not. According to him submitting to the jurisdiction of the officer is not the material fact or for that matter suppression thereof would not be a factor to dismiss this application in limine.</p><p style="text-align: justify;">8. Mr. P.K. Mullick, learned senior counsel appearing with Mr. R. Sinha, advocate, submits that the provision of Section 143 of the said Act at the time of filing of returns, for issuance of notice, is almost as the same it is now, notwithstanding the amendment. If the provisions of the previous Section 143(2) of the Act and Clause (ii) of the present Section 143(2) are read in juxtaposition then it will appear there is no difference, rather the provision of Clause (i) is a new insertion by way of substitution by the Finance Act, 2002, with effect from June 1, 2002. He submits that when a return was filed, the present Section 143(2) with Clause (i) was not in the statute book. He contends that two kinds of notices can be issued under the two respective Clauses (i) and (ii) under the present Section 143(2) of the Act. Notice under Clause (i) of Section 143(2) is meant for particular purpose and intent as mentioned in the clause itself. It will appear from the tenor of the language of the impugned notice that such specific purpose and intent is not reflected, therefore, it shall be presumed unmistakably the notice must have been issued under Section 143(2), Clause (ii) of the Act.</p><p style="text-align: justify;">9. Moreover he contends, that it is a mere irregularity and omission and such omission is always ignored by a court of law or any forum for that matter under the provision of Section 292B which reads as follows :</p><p style="text-align: justify;">'No return of income, assessment, notice, summons or other proceeding, furnished or made or issued or taken or purported to have been furnished or made or issued or taken in pursuance of any of the provisions of this Act shall be invalid or shall be deemed to be invalid merelyby reason of any mistake, defect or omission in such return of income, assessment, notice, summons or other proceeding if such return of income, assessment, notice, summons or other proceeding is in substance and effect in conformity with or according to the intent and purpose of this Act.'</p><p style="text-align: justify;">10. Therefore, as the officer having not mentioned Clause (ii) in the impugned notice the same cannot be said to be null and void and this should have been, having regard to the tenor of the impugned notice treated to have been issued under Clause (ii).</p><p style="text-align: justify;">11. Subsequently by a letter dated November 17, 2002, followed by January 28, 2003, this has been clarified.</p><p style="text-align: justify;">12. He contends further that there has been gross suppression of material fact that even after issuance of the aforesaid claricatory notice dated November 17, 2002, the petitioner duly appeared and participated in the hearing before the Assessing Officer and took adjournments on various grounds. Even on the date of filing of the writ petition an adjournment in writing was prayed for on the ground of his learned lawyer. Therefore, the petitioner on the one hand is giving an impression to the Assessing Officer that objection raised by him had been waived and on the other hand he has been challenging by this writ petition the aforesaid letter on the same day. This fact, according to him, has serious bearing on the adjudication of this matter as the dispute raised with regard to the notice, relates to mere irregularity for the appropriate clause having not been mentioned. It is not a type of objection, which cannot be waived. By his act and conduct this objection has been waived. Therefore, the petitioner is estopped from raising the dispute as to illegality of the impugned notice. This point is very essential and material for adjudication of this dispute.</p><p style="text-align: justify;">13. Mr. Mullick then contends that in a case of this nature this court will not exercise writ jurisdiction because there is no affectation of the right of the petitioner in this matter. If the assessment is allowed to be done with this impugned notice and the order if passed consequently, can be challenged subsequently before the appellate authority or for that matter before any other appropriate forum. Therefore, the petitioner is not left remediless. He relies on the decision of the Supreme Court reported in GKN Driveshafts (India) Ltd. v. ITO [2003] 259 ITR 19.</p><p style="text-align: justify;">14. Having considered the respective contentions of learned counsel and examined this matter the point raised herein is whether the impugned notice is bad in law or not. From the tenor of the notice I find it had been issued in general terms not for any specific purpose. Mr. P. K. Mullick has rightly said that the notice which is required to be served under the Clause (i) of Section 143(2) of the said Act must be specific with the object and intent mentioned therein whereas Clause (ii) provides for issuance of general notice after return under Section 139 of the Act is filed.</p><p style="text-align: justify;">15. The provision of Clause (ii) of the present section is almost the same as it was in previous Section 143(2) of the said Act at the time of the filing of the return, viz., October 31, 2001. The decision cited by Mr. Bharadwaj, namely, Hoosein Kasam Dada (India) Ltd. v. State of M.P. [1953] 4 STC 114, is wholly inapplicable in this case as in that case it was held amongst others that on the date of lis being pending the law then prevailing shall be applicable. The aforesaid decision has explained when the lis is deemed to be pending. It is when the return of the assessee is taken up for hearing for assessment or even before hearing of the assessment. In my view the lis is treated to be pending on and from the date of filing of returns in the event such returns are not accepted by the Assessing Officer and he decides to examine and hear. In this case the Assessing Officer has issued a notice in relation to the return filed by the petitioner. Therefore, the date of the lis being pending in this case should be reckoned on the date of filing of the returns, viz., October 29, 2001. Mr. Mullick rightly said that the provisions of the present Clauses (i) and Clause (ii) of the said section is not applicable in this case rather the previous Section 143(2) was applicable. In any view of the matter this does not make any difference in substance, as the provision of Clause (ii) of Section 143(2) of the said Act is almost the same as it was in Section 143(2) before June 1, 2002. The previous Section 143(2) is reproduced hereunder :</p><p style="text-align: justify;">'143(2) Where a return has been made under Section 139, or in response to a notice under Sub-section (1) of Section 142, the Assessing Officer, shall, if he considers it necessary or expedient to ensure that the assessee has not understated the income or has not computed excessive loss or has not underpaid the tax in any manner, serve on the assessee a notice requiring him, on a date to be specified therein, either to attend his office or to produce, or cause to be produced there, any evidence on which the assessee may rely in support of the return.'</p><p style="text-align: justify;">16. The contention of Mr. Bharadwaj is that as twelve months have already expired, the assessing authority has no jurisdiction to issue either any fresh notice or to clarify it. I am unable to accept this submission. Twelve months expired on October 31, 2002, computing from October 31, 2001, being the end of the month in which the return was filed. This proviso puts a time limit to issue notice which indeed was done, no embargo in the Act can be found to make correction or clarification of the notice. The impugned notice is not bad in law for the specific clause having not been mentioned. Particularly, when the text thereof substantially makes the intention clear as to why and for what purpose the notice was served. I have quoted the text of the notice and which, it appears, without any mistake makes the intention clear for general purpose, not for specific purpose as required under Clause (i). The effect of the clarification of any document is always retrospective, therefore, this would relate back to the date of the notice. The clarificatory notice has got no independent existence. It is mere addendum to the original one, besides this type of mistake or slip gets immunity under the provisions of Section 292B of the said Act, which is quoted hereunder, as appropriately urged Mr. Mullick.</p><p style="text-align: justify;">'292B. No return of income, assessment, notice, summons or other proceeding, furnished or made or issued or taken or purported to have been furnished or made or issued or taken in pursuance of any of the provisions of this Act shall be invalid or shall be deemed to be invalid merely by reason of any mistake, defect or omission in such return of income, assessment, notice, summons or other proceeding if such return of income, assessment, notice, summons or other proceeding is in substance and effect in conformity with or according to the intent and purpose of this Act.'</p><p style="text-align: justify;">17. Therefore, the judgment cited by Mr. Bharadwaj, namely, Sunrolling Mills P. Ltd. v. ITO : [1986]160ITR412(Cal) ; CIT v. Smt. Kaushalya : [1995]216ITR660(Bom) are wholly inappropriate in this case. Sunrolling Mills P. Ltd. v. ITO : [1986]160ITR412(Cal) dealt with the cases of reassessment under Sections 147 and 148 of the Act. The statute has provided the preconditions for assumption of jurisdiction in case of reassessment. Here is not such a case as I have indicated above. Similarly, the next one, in CIT v. Smt. Kaushalya : [1995]216ITR660(Bom) deals with the vague notice. The principle laid down therein is that the notice must be specific so that one can understand to act upon and this proposition is not disputed. But that does not mean a slip or error not being fatal and having clear substance in the notice cannot be corrected under Section 292B as quoted above. Besides, there is another relevant and pertinent point, namely the suppression of material facts. I accept the argument of Mr. Bharadwaj that suppression of all facts and every fact cannot be fatal to dislodge suitor from the track of due process of law. Only question is whether the facts suppressed are material or not, meaning thereby as rightly contended by Mr. Bharadwaj on the strength of the expression and/or meaning 'material' given in the Black's Law Dictionary, fifteenth edition, the facts which are germane to the issue of lis. It is true that the question here relates to the legality and validity of the notice under Section 143, Sub-section (2). But I think the act and conduct subsequent to the issuance of notice and immediately before filing of the writ petition or on the date of filing is relevant and/or material. It is a well-established principle of law in the public law filed as rightly contended by Mr. Mullick that clear and fair disclosure of the act and conduct of the litigant is a paramount condition to invoke extraordinary jurisdiction. A litigant must disclose rather place all his cards either in his favour or against before the court relating to or concerning with every detail of the matter up to the date of filing as the writ court ordinarily does not have any occasion to call for witness action. Unless all the facts and circumstances are placed before the writ court, it finds it difficult to adjudicate the matter and that is why the disclosure of all the facts, having relevancy to the cause of action and the reliefs sought for is necessary.</p><p style="text-align: justify;">18. As I have already observed that the objection raised by the petitioner is a waivable objection, the basis of this objection is non-mentioning of Clause (i). The object of mentioning of this clause of the said section is to make the noticee understand. If by the tenor and text of the notice makes the mind of the noticee clear what is to be done, then specific mentioning of Clause (ii) is a mere technical formality.</p><p style="text-align: justify;">19. Subsequent to both the clarificatory notices the writ petitioner admittedly appealed before the Assessing Officer and did not persist with his objection even subsequently on the date of filing of the writ petition. Two letters of adjournment of the writ petitioners do not have any mention or whisper in the body of the writ petition nor even in the affidavit in reply even after point being taken in the affidavit-in-opposition in specific terms, presuming that those two letters are of no value and are not material as contended by Mr. Bharadwaj in his argument. The law laid down in the decision of the apex court reported in [1994] 1 SCC 393 is undisputed, but this is not applicable in this case.</p><p style="text-align: justify;">20. His client's thinking is wishful and hardly helpful. Subsequent act and conduct as above without reservation amounts to waiver of objection of a technical nature. Therefore, I am of the view that the aforesaid facts together with the documents ought to have been disclosed in the writ petition or at least in the affidavit-in-reply. I do not hesitate to comment that this has not been done with the element of arrogance. Therefore, I hold that this is a gross suppression of material fact to non-suit the litigant in the public law field.</p><p style="text-align: justify;">21. Taking together as a whole as above I dismiss the writ petition. Because of impressive argument made by Mr. Bharadwaj with best of his ability, I refrain from awarding costs. Otherwise it would have been so.</p><p style="text-align: justify;">22. 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LAW: Section 143(2, Section 143(2, Section 143, Section 143, Section 143(2, Section 143(2, the Finance Act, Section 143(2, Section 143(2, Section 143(2, Section 143(2, Section 292B, Section 143(2, Section 139 of the Act, Section 143(2, Section 143(2, Section 143(2, Section 143(2, Section 139, Section 142, Section 292B, Section 292B, Section 143
PERSON: Kalayan Jyoti Sengupta J.1, R. Bharadwaj, Mihirlal Bhattacharyya, P.K. Mullick, R. Sinha, Mullick, Driveshafts, P. K. Mullick, Bharadwaj, Hoosein Kasam Dada, Mullick, Bharadwaj, Mullick, Bharadwaj, Bharadwaj, Bharadwaj, Mullick, Bharadwaj, Bharadwaj
DATE: October 21, 2002, 1961, October 29, 2001, the assessment year 2001-2002, November 11, 2002, 1961, October 21, 2002, November 17, 2002, twelve months, the end of the month, twelve months, twelve months, the end of the month, twelve months, the end of the month, October 31, 2001, October 29, 2001, November 17, 2002, 1953, 2002, June 1, 2002, '10, November 17, 2002, January 28, 2003, November 17, 2002, the same day, 2003, October 31, 2001, 1953, October 29, 2001, Section 143(2, June 1, 2002, '16, twelve months, Twelve months, October 31, 2002, October 31, 2001, the end of the month, '17, 1994
TIME: 12.30 p.m.
ORG: Department, Sunrolling Mills P. Ltd., ITO, CIT, State of M.P., SC).6, Black's Law Dictionary, Black's Law Dictionary, Clauses, Notice under Clause, the Supreme Court, ITO, ITR, State of M.P., Clauses, Sunrolling Mills P. Ltd., ITO, CIT, Mills P. Ltd., ITO, CIT, necessary.18, xerox
CARDINAL: 1986]160ITR412(Cal, 1995]216ITR660(Bom, 4, 881, two, two, two, 259, 19.14, 4, 114, 1, 1986]160ITR412(Cal, 1995]216ITR660(Bom, 1986]160ITR412(Cal, 147, 148, 1995]216ITR660(Bom, 2, Two, two
GPE: Hoosein Kasam Dada, India, India, India
ORDINAL: 15th
PRODUCT: 1 SCC 393