D.b. Civil Special Appeal (Writ) v. Income Tax Officer & Ors

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHANBENCH AT JAIPUR D.B. Civil Special Appeal (Writ) No.226/2015M/s Shiv Mahima Township Pvt. Ltd. v. Income Tax Officer & Ors Date of order 21.7.2015 Hon’ble Mr. Justice Ajay RastogiHon’ble Mr. Justice J.K. Ranka Mr. R. Santhanam with Mr. Nirmal Kumar Goyal, for the petitioner 1.The instant appeal has been preferred against order of the learnedSingle Judge dated 9.2.2015. The writ petition was preferred by theappellant against a show cause notice dated 14.3.2013 issued underSection 148 of the Income Tax Act, 1961 (for short 'the Act'), and thispetition was filed on 4.3.2014 i.e. after almost a year of the show causenotice served upon the appellant. In compliance of the show causenotice, objections were submitted on 12.2.2014 and the matter waslisted for admission before the learned Single Judge on 12.3.2014. Onthat day, the learned Single Judge, while calling upon the respondents,granted interim protection that till the next date reassessment may notbe finalised. Indisputably, on the next very day i.e. 13.3.2014, theregular assessment order came to be passed pursuant to the proceedingsinitiated in reference to show cause notice u/sec. 148 of the Act, dated14.3.2013. 2.In the writ petition filed by the appellant, several questions wereraised, and one of the question was that the very show cause noticeissued under Section 148 of the Act does not fulfill the requirement andmandate of law, and further proceedings pursuant to the notice couldnot have been initiated. The show cause notice under Section 148 ofthe Act was served on 14.3.2013, and the writ petition came to bepreferred in this court almost an year thereafter i.e. on 4.3.2014 and theobjections in reference to notice were also submitted on 12.2.2014, andunder these facts and circumstances, after the assessment order came tobe passed on 13.3.2014, the learned Single Judge of this courtdismissed the writ petition vide the order impugned on the premise thatthe statutory remedy of appeal is available to the appellant, if preferredagainst the order of assessment dated 13.3.2014. 3.It is informed to the court by the counsel appearing for theappellant that as a precaution he had advised his client to file a regularappeal before the Commissioner (Appeals) against the order ofassessment dated 13.3.2014 and this fact is indeed acceptable that allthese questions which have been raised in the instant special appealagainst order of the learned Single Judge, including the jurisdiction ofissuance of the show cause notice dated 14.3.2013, pursuant to whichthe proceedings were initiated, can certainly be raised in the pending 4.Counsel for the appellant submits that apart from the remedywhich the appellant has availed by filing an appeal against the order ofassessment dated 13.3.2014, at least a legal question regardingjurisdiction is one of the root cause and the learned Single Judge wasnot justified in dislodging the assessee from examining the legalquestion raised for consideration in the proceedings under Article 226of the Constitution, and in support of his submission, placed relianceon the judgments of Division Bench of Gujarat and Bombay HighCourts rendered in the case of Vishwanath Engineers v. AssistantCommissioner of Income-Tax [2013] 352 ITR 549 (Guj), and Tata v. Business Support Services Ltd.Deputy Commissioner of Income Tax& Others (2015) 120 DTR (Bom) 222. 5.We do not find substance in the submission made for the reasonthat the writ petition came to be preferred after almost a year ofissuance of the show cause notice on 4.3.2014 and it appears that whenthe proceedings were at the final stage, writ petition was preferred todefer the proceedings by one way or the other, and apart from it, afterthe assessment has been made by the assessing authority on 13.3.2014,all objections including the question of jurisdiction of the authority, or 5.We do not find substance in the submission made for the reasonthat the writ petition came to be preferred after almost a year ofissuance of the show cause notice on 4.3.2014 and it appears that whenthe proceedings were at the final stage, writ petition was preferred todefer the proceedings by one way or the other, and apart from it, afterthe assessment has been made by the assessing authority on 13.3.2014,all objections including the question of jurisdiction of the authority, or service of the show cause notice dated 14.3.2013 and other objectionsavailable under the law, can certainly be open to be examined, if raised,in the course of appeal preferred at the instance of the present assessee-appellant, and apart from it, the delay was also considered to be fatal,of which the learned Single Judge has taken care of in not exercising itsequitable jurisdiction under Article 226 of the Constitution, and if twodifferent views are possible on the questions raised for considerationand one view has been expressed by the learned Single Judge, andunless the view expressed is not palatable to law, view expressed is notto be disturbed merely because that is not either equitable or acceptableto the court. 6.In our considered view what has been expressed by the learnedSingle Judge, is certainly supported by law and does not requireinterference at least in an intra court appeal. 7.Consequently, the appeal deserves to be dismissed. However, itis expected of the Commissioner (Appeals) to decide the pendingappeal, preferred against the order of assessment dated 13.3.2014,expeditiously and the appellant is at liberty to raise all objections thathe has raised in the instant proceedings and if such objections areraised it is expected of the Commissioner (Appeals) to consider it on merits and decide accordingly without being influenced/inhibited by any observations of this court. (J.K. Ranka) J. (Ajay Rastogi) J. db42 [All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.]Deepankar Bhattacharya PS