ORDER Heard Sri Pankaj Bhatia, learned counsel for the petitioner and Sri A.N. Mahajan, learned counsel for the department.
2. Petitioner has challenged the order of the Commissioner of Income Tax, Kanpur dated 27-12-2001, vide Annexure 7 to the writ petition. That order has been passed under section 264 of the Income Tax Act.
2. Petitioner has challenged the order of the Commissioner of Income Tax, Kanpur dated 27-12-2001, vide Annexure 7 to the writ petition. That order has been passed under section 264 of the Income Tax Act.
3. In the order of the Commissioner of Income Tax it has been mentioned that the assessing officer, on account of non-compliance of the assessee, was left with no alternative but to pass the order under section 144 of the Income Tax Act (best judgment assessment).
3. In the order of the Commissioner of Income Tax it has been mentioned that the assessing officer, on account of non-compliance of the assessee, was left with no alternative but to pass the order under section 144 of the Income Tax Act (best judgment assessment).
4. Learned counsel for the petitioner submitted that there was violation of the proviso to section 143 of the Income Tax Act. This point has not been mentioned in the impugned order. The presumption in law is that a court or Tribunal deals with all the points which have been urged before it and there is also a presumption that the point which has not been discussed by the court or Tribunal in its judgment was never urged before it, vide 2003(98) FLR 1124 and State of Maharashtra v. Ramdas Shrinivas Nayak AIR 1982 SC 1249 etc.
4. Learned counsel for the petitioner submitted that there was violation of the proviso to section 143 of the Income Tax Act. This point has not been mentioned in the impugned order. The presumption in law is that a court or Tribunal deals with all the points which have been urged before it and there is also a presumption that the point which has not been discussed by the court or Tribunal in its judgment was never urged before it, vide 2003(98) FLR 1124 and State of Maharashtra v. Ramdas Shrinivas Nayak AIR 1982 SC 1249 etc.
5. Of course, this is a rebuttable presumption, and if a point is not mentioned in the impugned order the parties can contend that he had urged it before the court or Tribunal which passed that order. In such a case the party should approach the same court for rectification of its order. Sri Pankaj Bhatia, learned counsel for the petitioner has stated that this point was not in fact raised before the Commissioner. Hence this point cannot be raised before this Court.
5. Of course, this is a rebuttable presumption, and if a point is not mentioned in the impugned order the parties can contend that he had urged it before the court or Tribunal which passed that order. In such a case the party should approach the same court for rectification of its order. Sri Pankaj Bhatia, learned counsel for the petitioner has stated that this point was not in fact raised before the Commissioner. Hence this point cannot be raised before this Court.
6. Moreover, in this case the return was filed on 29-10-1997 and the notice under section 143(2) was issued on 1-9-1998, i.e., within one year. Hence the notice is valid.
6. Moreover, in this case the return was filed on 29-10-1997 and the notice under section 143(2) was issued on 1-9-1998, i.e., within one year. Hence the notice is valid.
The petition is dismissed.