AMIT BAJAJ ADVOCATE

Amritsar ITAT has held in DCIT vs Mangat Ram that jurisdiction under section 147 can be acquired only after limitation to issue notice under section 143(2) has expired.

 In this case it has been held by the ITAT that The Assessing Officer cannot acquire two jurisdictions to issue notice under section 148 as well as under section 143(2), especially when there is a time left for issuing notice under section 143(2) with respect to the original return filed by the assessee on 13-3-2008. 

Legislature sometimes leave a large amount of discretion in the hands of administrative authorities. Legislation conferring powers on the executive sometimes is drafted in broad and general terms that it leaves a large area of choice to the administrator to apply the law at his sweet will, and such legislation sometimes does not specify clearly the conditions and circumstances subject to which, and the norms with reference to which, the executive must use the powers conferred on it, which endangers a legal proverb coming true i.e "power corrupts a man and absolute power corrupts a man absolutely."

The law while granting a discretionary power to the executive should also lay down grounds and norms subject to which such discretionary power is to be exercised. 

Rule 2(hh) and Rules 64-A and Rules 64-B no where have prescribed such guidelines or grounds or criteria for exercising discretionary power by the Commissioner to specify the goods for the purposes of e-trip. The power given under Rule 2(hh) seems uncontrolled. There seems to be no check on the discretionary power granted to the executive relating to e-trip.

At present E-trip has been imposed on few items only keeping the other items out of its ambit and the limit fixed for the transaction is Rs 50000. What is the criteria for determining this monetary limit or the goods, nobody knows. In the current scenario where the inflation is at its peak, prices of goods rising high, monetary limit of Rs. 50000/- is too small for the businessmen operating at small scale who still may not have any access to computers and internet and thereby adding to their costs and hindering their trade.

 Tomorrow e-trip may be implemented on a transaction of Rs. 1000/- also, as no criteria whatsoever has been prescribed for specifying the goods or determinng the monetary limit and the Commissioner also need not have any prior permission of the State Government for regulating the trade and commerce in the grab of implementing etrip on any goods.

There should have been provision laying down the norms or criteria for exercising the power under Rule 2(hh) or under the rules relevant to e-trip or there should have been a check on such absolute power by the State Government. 

In nut shell broad powers present possibilities of being misused and exercised in an arbitrary manner. Therefore it becomes neccessary to devise proper safeguards against such an eventuality so that injustice is not done, trade and commerce are not effected and the fundamental rights especially of freedom of trade and profession guaranteed under article 19(1)(g) of Constuitution remains uneffected. Courts have to play a major role in the process of controlling the functioning of the administration.