Cwjc/1778/2019 Of Happy Science Bodhgaya India v. The Commissioner Of Income Taxes, Bihar, Patna

IN THE HIGH COURT OF JUDICATURE AT PATNACivil Writ Jurisdiction Case No.1778 of 2019 ====================================================== HAPPY SCIENCE Bodhgaya India, Mahamaya Palace Hotel and ConferenceCentre, Bakraur is registered under the TRUST having its registered Office atBakrour- 824231, Bihar through its founder Secretary Sudama Kumar, Gender- maleaged about 48, son of Sri Mangalchand Prasad, Resident of Mahamaya Palace Hotel,Village- Bakraur P.S. Bodhgaya and District- Gaya. ... ... Petitioner Versus 1.The Commissioner of Income Taxes, Bihar, Patna 2.The Income Tax Officer, Exemption, Ward 1, Patna, Bihar. 3.The Union of India through the Secretary Home Department Ministry of HomeAffairs Jasalmer House, 26 Man Singh Road, New Delhi- 110001Affairs Jasalmer House, 26 Man Singh Road, New Delhi- 1100014. The Economic Offences Unit, Govt. of Bihar through the Additional Director General ... ... Respondents ====================================================== Appearance :For the Petitioner/s: Mr. Binod Kumar Singh, Adv. Mr. Ashok Kumar, Adv.For the Respondent/s: Ms. Archana Sinha, Sr.S.C.For the UOI : Mr. Kanak Verma, CGCFor EOU : Mr. V.N.P.Sinha, Sr. Adv. Ms. Soni Shrivastava, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN and HONOURABLE MR. JUSTICE ARVIND SRIVASTAVAORAL JUDGMENT(Per: HONOURABLE MR. JUSTICE JYOTI SARAN)Date : 10-04-2019 Heard Mr. Binod Kumar Singh, learned Counsel appearing for the petitioner, Ms. Archana Sinha, learned Counselappearing for the Income Tax Department, Mr. V.N.P. Sinha,learned Senior Counsel with due assistance of Ms. SoniShrivastava, learned Counsel for the Economic Offences Unit,Government of Bihar, Patna and Ms. Kanak Verma, learnedCentral Government Counsel appearing for the Union of India. The petitioner has questioned the assessment order dated15.12.2018 impugned at Annexure-7 together with the demand notice of the same date impugned at Annexure-7/A, inter alia onground that the order is ex parte. This matter was taken up for consideration primarilybecause it was the contention advanced by learned Counselappearing on their behalf that it is because the Economic OffencesUnit of the Government of Bihar, who were arraigned as partyrespondent to the present proceeding, had seized the documentswhich were subject matter of the notice issued to the petitioner bythe Income Tax Department in purported exercise of powersvested under Section 142 of the Income Tax Act, 1961 (hereinafterreferred to as ‘the Act’), which inter alia demanded production ofvarious documents relatable to the affairs of the petitioner society,that the petitioner was precluded to respond to the notice andwhich has led to the assessment order that this Court whilearraigning the Economic Offences Unit as a party respondent,sought their response thereon. An affidavit is filed on their behalfand Mr. Sinha, learned Senior Counsel informs that whateverdocuments were required by the Department are explained in theaffidavit. Having noted the stand of the Economic Offences Unitas well as the contention advanced on behalf of the petitionerregarding inability to produce the documents so desired by the Having noted the stand of the Economic Offences Unitas well as the contention advanced on behalf of the petitionerregarding inability to produce the documents so desired by the Income Tax Department, we are of the opinion that even if there behandicaps for the petitioner in producing the documents to theIncome Tax Department, yet the matter does sustain the plea of exparte assessment, as canvassed on behalf of the petitioner. We sayso because the notice issued by the Income Tax Department dated24.11.2018 at Annexure 4 was indeed received by the petitioner on29.11.2018 but he chose to respond to the said notice only on01.01.2019 vide Annexure-5/A in which he has also accepted thathe appeared before the Department only on 17.12.2018 and whenhe was handed over the assessment order passed on 15.12.2018. We completely fail to appreciate that if the notice underSection 142 of ‘the Act’ was received by the petitioner on29.11.2018 what stopped the petitioner from visiting theDepartment either for seeking adjournment or for informing themregarding seizure of the documents by the Economic OffencesUnit. It is obvious that the Assessing Authority awaiting theresponse from the petitioner on the notice at Annexure-4 had noother option but to pass the order on 15.12.2018 in absence of anyassistance from the petitioner or any application filed in thisregard. Whether the documents mentioned in Annexure-4 wereunder seizure of the Economic Offences Unit or not are a subject matter of the dispute in view of the stand taken by the EconomicOffences Unit and we would not enter into such disputed area forthe present rather bearing note of the laid back attitude of thepetitioner in not responding to the notice of the Income TaxDepartment, for the present we would only permit him to exhaustthe alternative remedy available to him under ‘the Act’ and duringwhich course the petitioner would be at liberty to raise all issues ashe seeks to raise in the present writ petition. We note thatpendency of the matter has taken away the period of limitationprescribed under ‘the Act’ and thus we hold that if the petitionerchooses to file an appeal within four weeks from today togetherwith the petition for condonation of delay, the Appellate Authorityi.e. the Commissioner, Income Tax (Appeal) shall consider anddispose of the same in accordance with law on its own meritsbearing in mind the pendency of the matter before this Court. With the observations above, we dispose of the writpetition. (Jyoti Saran, J) Archana/ ( Arvind Srivastava, J)