Binduben Chandrakant Shah v. Oral Order

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 4914 of 2022 ==========================================================BINDUBEN CHANDRAKANT SHAH VersusTHE INCOME TAX OFFICER, WARD 5(3)(1) ========================================================== Appearance:MS VAIBHAVI K PARIKH(3238) for the Petitioner(s) No. 1MR.VARUN K.PATEL(3802) for the Respondent(s) No. 1,2========================================================== CORAM:HONOURABLE MS. JUSTICE SONIA GOKANIandHONOURABLE MRS. JUSTICE MAUNA M. BHATT Date : 15/11/2022 ORAL ORDER (PER : HONOURABLE MS. JUSTICE SONIA GOKANI) 1.The petition under Article 226 of the Constitution ofIndia challenges the notice dated 31.03.2021 issued by therespondent under Section 148 of the Income Tax Act(hereinafter referred to as ‘the Act’) seeking to reopen theincome tax assessment for the assessment year 2015-16. 2.The petitioner is engaged in the business of trading inshares who has filed return of income for the year underconsideration declaring the total income as nil on 21.09.2015.The notice dated 31.03.2021 was received seeking to reopenthe case of the petitioner. It is the say of the petitioner that the reasons for reopening had been received on 21.01.2022which were broadly on the count that the petitioner hasclaimed bogus LTCG on penny stock transaction and thepetitioner has claimed the amount of Rs. 1,35,65,738/- onpenny stock transaction during the year under consideration. 2.1.The objections have been raised on 07.02.2022, however,they were not disposed of and the patience of the petitionerhad veered off, therefore, he approached this Court seeking tochallenge the impugned notice itself with the followingprayers:- “(a) quash and set aside the impugned notice atANNEXURE "A ” to this petition; (b) pending the admission, hearing and final disposalof this petition, to stay the implementation andoperation of the notice at ANNEXURE “A" to thispetition and stay the further proceedings for theAssessment Year 2015-16; (c) any other and further relief deemed just andproper be granted in the interest of justice; (d) to provide for the cost of this petition.” 3.This Court (Mr. J.B.Pardiwala, J. as his lordship then wasand Ms. Nisha M. Thakore, J.) issued notice on 08.03.2022granting protection to the petitioner in terms of para 7(b). 3.1.On the returnable date, learned Senior Standing CounselMr. Varun Patel appeared and filed the basic reply where hequestioned the very maintainability of this petition. Accordingto him, objections have not as yet been disposed of, thepetition is premature. All other averments, according to thisreply, are not sustainable. 4.We have heard learned Senior Advocate Mr. TusharHemani assisted by learned advocate Ms. Vaibhavi Parikh forthe petitioner and learned Senior Standing Counsel Mr. VarunPatel with learned Standing Counsel Mr. Dev Patel for thedepartment. 5.According to learned Senior Advocate Mr. Hemani, it isnot unknown to this Court that pending the petition,objections can be directed to be disposed of as it is a group ofthe matters where there is hardly any possibility of therespondent taking any other stand while disposing ofobjections. This was resisted by the other side. 6.We noticed that in today’s date, this Court has disposedof two of the matters being Special Civil Application Nos.4900/2022 and 4896/2022 wherein the assessment made is nil and they were the part of the very group, therefore, nothingcan be presumed in advance and the stage of disposing of theobjections will need to be made available to the respondentauthority. 5.According to learned Senior Advocate Mr. Hemani, it isnot unknown to this Court that pending the petition,objections can be directed to be disposed of as it is a group ofthe matters where there is hardly any possibility of therespondent taking any other stand while disposing ofobjections. This was resisted by the other side. 6.We noticed that in today’s date, this Court has disposedof two of the matters being Special Civil Application Nos.4900/2022 and 4896/2022 wherein the assessment made is nil and they were the part of the very group, therefore, nothingcan be presumed in advance and the stage of disposing of theobjections will need to be made available to the respondentauthority. 7.Petition being prematured, this Court chooses not toentertain it at this stage. Let the disposal on the strength ofthe objections raised by the petitioner be made by theauthority concerned within two weeks from the date of receiptof copy of this order, on availing opportunity in accordancewith law. 8.If any adverse order is passed, no effect be given to thesame by the Revenue for two weeks. The petitioner will be atliberty to take legal course within this period of two weeks, ifit so chooses. 9.This Court has not expressed any view on the merits ofthe matter, it shall be decided on its own strength. Disposedof. (SONIA GOKANI, J) (MAUNA M. BHATT,J)