Cwjc/2089/2018 Of Bihar State Hydroelectric Power Corporation Ltd v. Commissioner Of Income Tax, I

IN THE HIGH COURT OF JUDICATURE AT PATNACivil Writ Jurisdiction Case No.2089 of 2018 ====================================================== Bihar State Hydroelectric Power Corporation Ltd. Having it office at 2[nd]Floor, Sone Bhawan, Bir Chand Patel Path, R Block More, Patna- 800001through its Chief Engineer, Sri Mani Sharan, Son of Late Jagdishwari Sharan,resident of Kumhrar, Nayatola Kankarbagh, P.O. Agamkuan P.S. Agamkuan,District-Patna-800026. ... ... Petitioner/s Versus 1.Commissioner of Income Tax, I having its office at Bir Chand Patel Path,Patna, Bailey Road, Patna.Patna, Bailey Road, Patna. 2.Asst. Commissioner of Income Tax, Circle 2, Patna. ... ... Respondent/s ======================================================Appearance :For the Petitioner/s: Mr. D.V.Pathy, Adv.For the Respondent/s: Ms.Archana Sinha @ Archana Shahi, SC.====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN and HONOURABLE MR. JUSTICE PARTHA SARTHYORAL JUDGMENT(Per: HONOURABLE MR. JUSTICE JYOTI SARAN) Date : 05-08-2019 Heard Mr. D. V. Pathy, learned counsel for the petitioner and Ms. Archana Sinha, learned Standing Counsel forthe Department. This writ petition was filed to question the notice dated30.03.2017 at Annexure 3 together with the order dated31.12.2017 passed by the Assistant Commissioner of Income Taxin a proceeding initiated under Section 147 of the Income Tax Act,1961 (hereinafter referred to as ‘the Act’) read alongside theprovision under Section 143(3) of ‘the Act’. The petitioner also questions the consequential demandnotice which forms part of the Annexure 4 series. Amongst theseveral issues raised in this writ petition to question the entireexercise under Section 147 of ‘the Act’ to result in the orderimpugned, one of the issue that was raised by Mr. Pathy and takennote of by us in our order dated 18.06.2019 is the rejection of theclaim on the business losses and its addition which according toMr. Pathy was an illegality as despite such addition made, yet thepetitioner continued to be in loss income. The issue so raised perhaps was examined by theDepartment as reflected from the supplementary counter affidavitfiled today because paragraph 14 admits to the error committed inso far as the order on re-assessment purports to reject the claim onthe business losses of Rs. 39,44,57,728/-. It is informed that on themistake becoming apparent, a rectification order was passed underSection 154 of ‘the Act’ and the business loss claimed by theassessee has been allowed to result in a refund of Rs. 27,17,210/-.For the sake of convenience we reproduce the statement made inpara 14 of the supplementary counter affidavit filed on behalf ofDepartment which runs under:- “ That it is also important to mention here that arectification order u/s 154 of Income Tax Act,1961 has already been passed in the instant case of the assessee pertains to A.Y. 2012-13 on07.08.2018. It is mainly because of while passingthe re-assessment under Section 147 of theIncome Tax Act, 1961 the claim of business lossby the assessee of Rs.39,44,57,728/- was notallowed inadvertently. As the mistake wasapparent from record, the same was allowed viderectification order under Section 154 of theIncome Tax Act, 1961, under memo no. 746,dated 07.08.2018 and the same has resulted into arefund of Rs. 27,17,210/-.” Mr. Pathy, learned counsel for the petitioner at this stage while submitting that the assessment order impugned atAnnexure-4 series together with the demand notice as impugnedat Annexure-4 series yet continues with a number of infirmitiesprays for liberty for the petitioner to raise the other issues in astatutory appeal under Section 246 of ‘the Act’ but furthersubmits that since the period of limitation has expired in themeanwhile, a reasonable time may be granted to the petitioner fortaking recourse thereto. Mr. Pathy, learned counsel for the petitioner at this stage while submitting that the assessment order impugned atAnnexure-4 series together with the demand notice as impugnedat Annexure-4 series yet continues with a number of infirmitiesprays for liberty for the petitioner to raise the other issues in astatutory appeal under Section 246 of ‘the Act’ but furthersubmits that since the period of limitation has expired in themeanwhile, a reasonable time may be granted to the petitioner fortaking recourse thereto. We do not think Ms. Archana Sinha, learned counselappearing for the Department would have serious objection onthe liberty so prayed and accordingly we dispose of the writpetition allowing the petitioner to contest the assessment order onits merit in so far as the other issues are concerned by filing statutory appeal under Section 246 of ‘the Act’ and should anysuch appeal be preferred by the petitioner within 6 weeks fromtoday, if accompanied with the petition for condonation of delay,the Commissioner, Income Tax Appeal shall consider and disposeof the same on its merits in accordance with law after opportunityof hearing to the petitioner or its representative bearing in mindthe pendency of the matter before this Court, preferably withinsix weeks of the filing of the appeal. (Jyoti Saran, J) ( Partha Sarthy, J) Anjula/- AFR/NAFRNAFRCAV DATENAUploading Date21-08-2019Transmission DateNA