Commissioner Of Income Tax, Dehradun v. Pankaj Nagalia, 13 B New Survey Road, Dehradun .…………

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Income Tax Appeal No. 27 of 2012 Commissioner of Income Tax, Dehradun ………….. Appellant Versus Pankaj Nagalia, 13 B New Survey Road, Dehradun .…………. Respondent Present: Mr. Hari Mohan Bhatia, Advocate for the appellant. Mr. Ajay Kumar Gupta, Senior Advocate with Mr. Aditya Singh, Mr. P.R. Mullick and Mr. Anirudh Gupta, Advocates for the respondent. Date: 31st December, 2012 Coram: Hon’ble Barin Ghosh, C.J.Hon’ble U.C. Dhyani, J. BARIN GHOSH, C.J. (Oral) In exercise of power under Section 263 of the Income Tax Act, 1961 (hereinafter referred to as “the Act”), the assessment was reopened. Before the Tribunal, it was contended by the respondent/assessee that such power, in the facts and circumstances of the case, could not be used, inasmuch as, all the materials were before the Assessing Officer and Assessing Officer had an opportunity to go through each and every information already on record and no new information percolated thereafter. While the appeal before the Tribunal, against user of the said power under Section 263 of the Act, was pending, re-assessment was made. Before the Assessing Authority, who made the re-assessment, it was not contended by the assessee that he is participating in the said proceeding without prejudice to his rights and contentions in the appeal pending before the Tribunal and, at the same time, while no stay of re-assessment was applied before the Tribunal, no leave was obtained from the Tribunal also to participate in the re-assessment proceeding without prejudice to the rights and contentions in the appeal pending before the Tribunal. After the re- assessment proceeding was completed by the Assessing Authority, the appeal pending before the Tribunal was taken up. The Tribunal held that user of power under Section 263 of the Act, in the facts and circumstances of the case, was not appropriate. Against that, the present appeal has been preferred. We are of the view that having regard to the fact that the re-assessment was complete before the appeal was taken up, the question, whether the user of the power under Section 263 of the Act, in the instant case, was or was not appropriate, became academic, inasmuch as, re-assessment was permitted without any prejudice to the pending appeal. 2. We, accordingly, allow the appeal, set aside the judgment and order of the Tribunal. 3. We have been informed by the learned counsel for the respondent/assessee that against the order of re-assessment, an appeal has been preferred before the Commissioner (Appeals), which appeal is pending. The commissioner (Appeals) shall decide the said appeal without being influenced by any observation made by this Court or any observation made by the Tribunal in the order, which has been set aside by this order. P. Singh (U.C. Dhyani, J.) (Barin Ghosh, C.J.) 31.12.2012 31.12.2012