Cwjc/17238/2017 Of Bhagalpur Central Cooperative Bank Ltd v. Commissioner Of Income Tax, Bhagalpur Kacheri Chowk Bhagalpur

IN THE HIGH COURT OF JUDICATURE AT PATNACivil Writ Jurisdiction Case No.17238 of 2017 ====================================================== Bhagalpur Central Cooperative Bank Ltd. a Cooperative Bank registeredunder the co-operative Societies Act, 1935 under the having its office atJageshwar Mandal Bhawan, Red Cross Road, Adampur, Bhagalur thrugh itsManaging Director Subhash Kumar, son of Bal Narain Kunwar, Resident ofJageshwar Mandal Bhawan, Red Cross Road, P.O.- GPO and P.S.- Adampur,Bhagalpur. ... ... Petitioner/s Versus 1.Commissioner of Income Tax, Bhagalpur Kacheri Chowk Bhagalpur 2.Asst. Commissioner of Income Tax, Circle-1, Patna. ... ... Respondent/s ======================================================Appearance :For the Petitioner/s: Mr. D.V. Pathy, Adv.For the Respondent/s: Mr. Rishi Raj Sinha, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN and HONOURABLE MR. JUSTICE PARTHA SARTHYORAL JUDGMENT(Per: HONOURABLE MR. JUSTICE JYOTI SARAN) Date : 02-07-2019 Heard Mr. D.V. Pathy learned counsel for the petitionerand Ms. Archana Sinha learned Senior Standing counsel for theIncome Tax Department who opposes the writ petition whichquestions the notice dated 30.03.2017 issued by the AssistantCommissioner, Income Tax in purported exercise of powervested under Section 148 of the Income Tax Act, 1961(hereinafter referred to as ‘the Act’). This writ petition was heard by a coordinate bench on13.12.2017 and the bench while issuing notice, stayed further proceedings under Section 147/148 of ‘the Act’ for reopening ofassessment. This position was reiterated when the matter cameup next on 09.01.2018. The position as it stands is that it is during the operationof the interim order passed on 13.12.2017 staying furtherproceeding that the assessment order was passed under Section148 read along side Sections 144 and 143 of ‘the Act’ on20.12.2017 and a copy of which is placed on record videAnnexure-8 series to I.A. No. 58 of 2018. When this matter came up for consideration before us,while it was contended on behalf of the Department that noneappeared on their behalf when the matter was taken up beforethis Court on 13.12.2017, learned counsel for the petitioner inreference to the said order, submitted that some counsel hadaccepted notice on behalf of the department. The position isdisputed because while the memo of parties records noappearance of respondent counsel but the ordersheet recordsacceptance of notice. We do not intend to go into this disputebut the fact remains that even when the interim order passed on13.12.2017 was in operation, the assessment order was passed.The petitioner did draw the attention of the authorities, after theconfirmation of the interim order was passed on 09.01.2018 vide his representation dated 11.01.2018 as manifest fromAnnexure -A to the supplementary counter affidavit filed in thepresent proceedings but before the said date the final order hadalready been passed on the assessment proceedings. The legal position is very well settled and any orderpassed during operation of the order of stay, is held a nullity.There is no dispute that the assessment order was passed by theAssessing authority i.e the Assistant Commissioner, IncomeTax, Circle I, Bhagalpur in purported exercise of power underSection 144/148/143(3) of ‘the Act’ on 20.12.2017 i.e while theinterim order staying further proceedings passed by this Courton 13.12.2017 was in operation. On this simple note that the assessment order dated20.12.2017 was passed in violation of the interim order dated13.12.2017 and without examining the same on merits, we holdthe order dated 20.12.2017 of the Assistant Commissioner,Income Tax Circle-1(1), Bhagalpur, void and accordingly quashthe same together with demand if any, issued pursuant thereto. On this simple note that the assessment order dated20.12.2017 was passed in violation of the interim order dated13.12.2017 and without examining the same on merits, we holdthe order dated 20.12.2017 of the Assistant Commissioner,Income Tax Circle-1(1), Bhagalpur, void and accordingly quashthe same together with demand if any, issued pursuant thereto. We remit this matter back to the Assistant Commissioner,Income Tax, Circle- 1(I), Bhagalpur to pass order afresh butafter opportunity of hearing to the petitioner who shall appearbefore the Assistant Commissioner together with the copy of this order on 15.07.2019 at 11 A.M. and when he shall proceedto dispose of the proceedings in the manner above. The writ petition is allowed with the directionsaforementioned. (Jyoti Saran, J) ( Partha Sarthy, J) Bibhash/- AFR/NAFRNAFRCAV DATENAUploading Date09.07.2019Transmission DateNA