Cwjc/3556/2010 Of Sri Ramakant Singh v. Commissioner Of Income Tax(Central), Patna

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3538 of 2010 M/S RAMAKANT SINGH, a partnership firm having its place of business at 101, Lotus Apartment, New Patliputra Colony, Patna- 800 013 through one of its partners Sri Ramakant Singh, son of Late Ram Khelawan Singh, aged about 56 years, residing at 101, Lotus Apartment, New Patliputra Colony, Patna-800 013, P.O. New Patliputra Colony, P.S. Patliputra in the town and district of Patna ….. Petitioner Versus 1.COMMISSIONER OF INCOME TAX(CENTRAL), PATNA, 2.Assistant Commissioner of Income Tax, Central Circle 1, Patna, 3.Union of India through the Secretary, Department of Revenue, Ministry of Finance, Government of India, Central Secretariat, –North Block, New Delhi 110 001 …… Respondents. with CWJC No.3550 of 2010 M/S RAMAKANT SINGH, a partnership firm having its place of business at 101, Lotus Apartment, New Patliputra Colony, Patna- 800 013 through one of its partners Sri Ramakant Singh, son of Late Ram Khelawan Singh, aged about 56 years, residing at 101, Lotus Apartment, New Patliputra Colony, Patna-800 013, P.O. New Patliputra Colony, P.S. Patliputra in the town and district of Patna ………………………………….. Petitioner Versus 1. COMMISSIONER OF INCOME TAX (CENTRAL), PATNA, 2.Assistant Commissioner of Income Tax, Central Circle 1, Patna, 3.Union of India through the Secretary, Department of Revenue, Ministry of Finance, Government of India, Central Secretariat, –North Block, New Delhi 110 001 …………….… Respondents. with CWJC No.3556 of 2010 SRI RAMAKANT SINGH, son of Late Ram Khelawan Singh, aged about 56 years, residing at 101, Lotus Apartment, New Patliputra Colony, Patna-800 013, P.O. New Patliputra Colony, P.S. Patliputra in the town and district of Patna ….... Petitioner Versus 1. COMMISSIONER OF INCOME TAX (CENTRAL), PATNA, 2.Assistant Commissioner of Income Tax, Central Circle 1, Patna, 3.Union of India through the Secretary, Department of Revenue, Ministry of Finance, Government of India, Central Secretariat, –3.Union of India through the Secretary, Department of Revenue, Ministry of Finance, Government of India, Central Secretariat, –North Block, New Delhi 110 001 …………… Respondents with CWJC No.3563 of 2010 SRI RAMAKANT SINGH, son of Late Ram Khelawan Singh, aged about 56 years, residing at 101, Lotus Apartment, New Patliputra Colony, Patna-800 013, P.O. New Patliputra Colony, P.S. Patliputra in the town and district of Patna ….. Petitioner Versus 1. COMMISSIONER OF INCOME TAX (CENTRAL), PATNA, 2. Assistant Commissioner of Income Tax, Central Circle 1, Patna, 3. Union of India through the Secretary, Department of Revenue, Ministry of Finance, Government of India, Central Secretariat, – Ministry of Finance, Government of India, Central Secretariat, – North Block, New Delhi 110 001 ………….. Respondents. ----------- 2 03.03.2010 Heard Mr. Pankaj on behalf of Mr. Vikash Jain, learned counsel for the assessee-petitioners. It is fairly agreed at the Bar that the controversy raised in the present writ petitions is squarely covered by an inter-parte order dated 16.2.2010 in C.W.J.C. No. 2647 of 2010, which reads as follows:- “By this writ petition the petitioner has prayed for issue of a writ of certiorari for quashment of the notice dated 19.9.2007 issued under Section 263 of the Income tax Act, 1961 (for brevity „the Act‟) by the Commissioner of Income Tax (Central) on the ground that the notice to show cause is sensitively susceptible inasmuch as the Commissioner has not recorded that the order passed by the assessing officer is erroneous as well as prejudicial to the interest of revenue. ----------- 2 03.03.2010 Heard Mr. Pankaj on behalf of Mr. Vikash Jain, learned counsel for the assessee-petitioners. It is fairly agreed at the Bar that the controversy raised in the present writ petitions is squarely covered by an inter-parte order dated 16.2.2010 in C.W.J.C. No. 2647 of 2010, which reads as follows:- “By this writ petition the petitioner has prayed for issue of a writ of certiorari for quashment of the notice dated 19.9.2007 issued under Section 263 of the Income tax Act, 1961 (for brevity „the Act‟) by the Commissioner of Income Tax (Central) on the ground that the notice to show cause is sensitively susceptible inasmuch as the Commissioner has not recorded that the order passed by the assessing officer is erroneous as well as prejudicial to the interest of revenue. Ordinarily, we would have dwelled upon the said issue but Mr. Harshwardhan Prasad, learned senior standing counsel for Revenue has submitted that the assessee petitioner had appeared before the Commissioner and participated by filing a show-case and the Commissioner had passed a final order under Section 263 of the Act and against the said order the assessee had preferred an appeal before the Income tax Tribunal (for short „the Tribunal‟) which has remanded the matter to the Commissioner of Income Tax (Central). This fact is not disputed by Mr. Jain, learned counsel for the assessee-petitioner. In this context, we may reproduce paragraph 10 of the order passed by the Tribunal:- “10. So far as, present case is concerned, we are of the opinion that assessee having not placed a copy of questionnaire dated 17.11.2006 issued by the A.O. and also a copy of assessee‟s reply dated 18.09.2006, it is not possible for us to decide as to was the nature or extent of enquiries/investigation, if any conducted by the A.O. and with respect to which issues the questionnaire was issued, we are unable to decide the assessee‟s plea and since the assessee‟s plea is vital and goes to the roots of cause, we consider it, in the interest of justice, justified to set aside the combined order of CIT and refer the issue back to his file with the directions that issue raised by him by way of show cause notice be decided afresh in accordance with law relating to provisions of section 263 after allowing the assessee a proper opportunity of being heard.” In view of the aforesaid, we are not Dilip inclined to interfere with the order at this stage. However, it is directed that the Commissioner of Income Tax (Central) shall dispose of the matter within a period of three months from today. As we have been apprised the said authority has fixed the date on 17.2.2010, as agreed to by learned counsel for the parties, the same should be postponed to a further reasonable date and the matter shall be heard and disposed of in terms of the directions given by the Tribunal within the time frame stipulated hereinabove. The writ petition is accordingly disposed of.” In view of the aforesaid concession, these writ petitions also stand disposed of in identical terms of the aforesaid order passed in C.W.J.C. No. 2647 of 2010, but without any order as to costs. ( Dipak Misra, C.J. ) ( Mihir Kumar Jha, J. )