At Jaipur Bench, Jaipur v. Date Of Order :: 19/01/2016

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR S.B. Civil Writ Petition No. 12980/2015Prithvi Raj Singh, HUF-PetitionerVersusCommissioner of Income Tax & Ors.-Respondents Date of Order :: 19/01/2016 Hon'ble Ms. Justice Bela M. Trivedi Mr. Abhey Bhandari Sr. Advocate with Mr. Samit Bishnoi, for the petitioner.Ms. Parinitoo Jain for the respondent Nos.1 and 2. & Mr. Dheeraj Tripathi, Deputy Govt. Counsel, for the respondent Nos.3&4. ORDER BY THE COURT : 1.The present petition has been filed by the petitioner Prithvi RajSingh, HUF through legal heir Smt. Jai Shree Kumari W/o.Late Shri PrithviRaj Singh, challenging the order dated 19/9/2011 passed by the SubRegistrar, Beawar, District Ajmer, and the order dated 31[st] March, 2015passed by the Assessing Officer. The petitioner has also challenged thedemand notice dated 31[st] August, 2015 issued by the Income Tax Officer,Ward No.1, Kishangarh. 2.The short facts giving rise to the present petition are that late ShriPrithvi Raj Singh, husband of Smt. Jai Shree Kumari-petitioner herein hadexecuted a sale deed in favour of M/s. Jai Hind Build Con on 9/9/2011 inrespect of his commercial property known as “Sumer Talkies” for the saleconsideration of Rs.6,04,75,000/-. The Sub Registrar vide the letter dated19/9/2011 (Part of Annexure-6) raised the demand of deficit stamp duty inexercise of the powers conferred under Section 54 of the Rajasthan StampAct evaluating the property in question to the tune of Rs.8,91,48,410/-.According to the petitioner, the said late Shri Prithvi Raj Singh was one of the partners in the firm M/s. Jai Hind Build Con, who had purchased the saidproperty, however he having expired on 6/11/2011, a retirement deed wasexecuted by the legal heirs of Shri Prithvi Raj Singh on 12/12/2011.Thereafter, the petitioner received the notice on 9/1/2015 from the IncomeTax Officer Ward-1 i.e. the respondent No.2 calling upon the petitioner toexplain the discrepancy as the property in question was assessed by the SubRegistrar at Rs.8,91,48,410/-, however the petitioner had computed theincome showing the consideration at Rs.6,06,91,845/-. The petitioner videthe letter dated 16/1/2015 replied to the said notice and objected to thevaluation of the property in question as done by the Sub Registrar. Thepetitioner thereafter came to know that the pruchaser M/s. Jai Hind BuildCon had accepted the re-valuation made by the Stamp Department and haddeposited the stamp duty on 21/11/2011 as demanded. It is further case ofthe petitioner that even though the petitioner had raised the objection, theAssessing Officer without considering the said objection, passed theassessment order dated 31[st] March, 2015, without waiting the report ofDistrict Valuation Officer as contemplated under Section 50C of the IncomeTax Act. The petitioner being aggrieved by the said order has filed theappeal before the Commissioner of Income Tax (Appeals), Ajmer which ispending for consideration. The present petition has been filed by thepetitioner challenging the impugned order of Sub Registrar (Stamp) Act andalso the said order passed by the Assessing Officer. 3.It is sought to be submitted by the learned senior counsel Mr. AbheyBhandari for the petitioner that the Sub Registrar had passed the impugnedorder without issuing any notice to the petitioner or her husband and hadmade valuation of the property in question without any basis. According to 3.It is sought to be submitted by the learned senior counsel Mr. AbheyBhandari for the petitioner that the Sub Registrar had passed the impugnedorder without issuing any notice to the petitioner or her husband and hadmade valuation of the property in question without any basis. According to him, the petitioner was also not aware that the said order was alreadycomplied with by the purchaser firm by making payment of the deficitstamp duty as demanded by the Sub Registrar. Pressing into service theprovisions contained in Section 50C of the Income Tax Act, the learnedSenior Counsel Bhandari submitted that the petitioner had already objectedagainst the Assessing Officer having adopted the valuation made by the SubRegistrar, Stamp Duty and therefore the Assessing Officer was required torefer the matter to the Valuation Officer, and frame assessment afterreceiving the report from him, however the Assessing Officer withoutwaiting for such report had passed the impugned order. He furthersubmitted that the petitioner having left with no remedy to challenge sucharbitrary orders passed by the concerned authorities, has approached thisCourt. However, the learned counsel Ms. Parinitoo Jain appearing for therespondent Nos.1 and 2 submitted that the petitioner having alreadychallenged the order dated 31/3/2015 passed by the Assessing Officerbefore the Appellate Authority i.e. Commissioner of Income Tax (Appeals),the present petition is not maintainable in the eye of law. She alsosubmitted that the petitioner had not even asked for the stay against thesaid order passed by the Assessing Officer, before the Appellate Authorityand therefore the petitioner cannot be granted any relief, as prayed for.She has relied upon the decision of Apex Court in case ofCommissioner ofIncome Tax & Ors. vs. Chhabil Dass Agarwal, (2013) 357 ITR 357(SC)tosubmit that when the alternative remedy is available to the petitioner, thepetition under Article 226 of the Constitution is not maintainable. She hasalso relied upon the decision of this Court in case ofM/s. Maheshwari AgroIndustries vs. Union of India & Ors, (2012) 246 CTR (Raj.) 113to submit that the Commissioner of Income Tax (Appeals) has all the authority toconfirm, reduce, enhance or annul the assessment as also to pass necessaryorders for stay against the recovery of the disputed demand. The learnedcounsel Mr. Dheeraj Tripathi for the respondent Nos.3 and 4 has submittedthat late Shri Prithvi Raj Singh being the partner of the firm M/s. Jai HindBuild Con, which had purchased the property in question, and the saidpurchaser having already complied with the order dated 19/9/2011 passedby the Sub Registrar, it was not open for the petitioner to challenge thesame and that too after the lapse of more than four years. 4.Having regard to the submissions made by the learned counsels forthe parties, and to the documents on record as also the provisions of theRajasthan Stamp Act as well as of the Income Tax Act, it appears thatadmittedly, the petitioner has challenged the impugned order dated31/3/2015 passed by the Assessing Officer, before the CIT(Appeals). Hencein view of the decision of the Supreme Court in case of CIT vs. Chhabil DassAgarwal relied upon by Ms. Parinitoo Jain, the present petition under Article226 would not be maintainable in the eye of law. It is held therein as under :- 4.Having regard to the submissions made by the learned counsels forthe parties, and to the documents on record as also the provisions of theRajasthan Stamp Act as well as of the Income Tax Act, it appears thatadmittedly, the petitioner has challenged the impugned order dated31/3/2015 passed by the Assessing Officer, before the CIT(Appeals). Hencein view of the decision of the Supreme Court in case of CIT vs. Chhabil DassAgarwal relied upon by Ms. Parinitoo Jain, the present petition under Article226 would not be maintainable in the eye of law. It is held therein as under :- “Before discussing the fact proposition, we would notice theprinciple of law as laid down by this Court. It is settled lawthat non-entertainment of petitions under writ jurisdiction bythe High Court when an efficacious alternative remedy isavailable is a rule of self-imposed limitation. It is essentially arule of policy, convenience and discretion rather than a ruleof law. Undoubtedly, it is within the discretion of the HighCourt to grant relief under Article 226 despite the existenceof an alternative remedy. However, the High Court must notinterfere if there is an adequate efficacious alternativeremedy available to the petitioner and he has approached theHigh Court without availing the same unless he has made outan exceptional case warranting such interference or thereexist sufficient grounds to invoke the extraordinaryjurisdiction underArticle 226. (See: State of U.P. vs.Mohammad Nooh, AIR 1958 SC 86; Titaghur Paper Mills Co. Ltd. vs. State of Orissa, (1983) 2 SCC 433; Harbanslal Sahniavs. Indian Oil Corpn. Ltd., (2003) 2 SCC 107; State of H.P. vs.Gujarat Ambuja Cement Ltd., (2005) 6 SCC 499).” 5.In view of the above stated legal position, the petitioner havingalready approached the Appellate Authority and availed of the alternativeremedy, this petition under Article 226 of the Constitution is notmaintainable. The submission made by the learned counsel Ms. ParinitooJain for the respondents that the petitioner having not made anyapplication before the Appellate Authority seeking stay against theexecution of and the order passed by the Assessing Officer, the demandnotice dated 31/8/2015 was issued by the concerned Income Tax Officer hasalso not been disputed by the learned counsel for the petitioner. It is alsopointed out by the learned counsels for the respondents that in the groundsof appeal, the petitioner has already objected against the determination ofsale consideration to be Rs.8,91,48,410/- instead of Rs.6,06,91,845/-. Thatbeing the subject matter pending before the Appellate Authority, the Courtrestrains itself from expressing any opinion on such valuation. It is needlessto say that the Appellate Authority shall decide the said appeal inaccordance with law. 6.So far as the impugned order dated 19/9/2011 is concerned, apartfrom the fact that the same is sought to be challenged after four years bythe petitioner, it is pertinent to note that the said order was passed whenthe seller Shri Prithvi Raj Singh, who was the husband of the petitioner andalso one of the partners of the purchaser firm was alive. Thereafter the saidpurchaser firm had complied with the said order passed by the SubRegistrar, crystalling the liability of the purchaser firm. It is therefore notopen for the petitioner to challenge the said order by way of present 6.So far as the impugned order dated 19/9/2011 is concerned, apartfrom the fact that the same is sought to be challenged after four years bythe petitioner, it is pertinent to note that the said order was passed whenthe seller Shri Prithvi Raj Singh, who was the husband of the petitioner andalso one of the partners of the purchaser firm was alive. Thereafter the saidpurchaser firm had complied with the said order passed by the SubRegistrar, crystalling the liability of the purchaser firm. It is therefore notopen for the petitioner to challenge the said order by way of present petition, more so when the petitioner has challenged the assessment madeby the Assessing officer on the basis of the said order of the StampAuthority, before the CIT(Appeals). Though it is sought to be submitted bythe learned Senior Counsel Mr.Abhey Bhandari for the petitioner that thepetitioner was not aware about the deposit of deficit stamp duty made bythe purchaser firm, it is difficult to accept the said submission. When thesaid late Shri Prithvi Raj Singh was alive at the relevant time, andsubsequently when the deed of retirement was also executed on12/12/2011 by the legal heirs of Shri Prithvi Raj Singh, it is too late in thelight of the day for the petitioner to challenge the said order passed by theSub Registrar as back as in the year 2011. 7.In that view of the matter, the Court does not find any substance inthe present petition. The petition being devoid of merits is dismissed. Bythis order, the stay application and other pending application, if any alsostand dismissed. (Bela M. Trivedi) J. Sanjay Solanki PA 33All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.”Sanjay Solanki Personal Assistant