E Impugnedorder Dated 17.03.2021 Passed By The Respondent v. Commissioner Of Income Tax(International Taxation)[2], As Well As A Judgment Of The Supreme Courtin The Matter Of Sajan Kumar Bhawsinka V. Commissioner Ofincome

Court No. - 38 Case :- WRIT TAX No. - 350 of 2021 Petitioner :- Raj Kumar JaiswalRespondent :- Union Of India And 2 OthersCounsel for Petitioner :- Amit MahajanCounsel for Respondent :- A.S.G.I.,Gopal Verma,Manu Ghildyal Hon'ble Jayant Banerji,J. Heard Shri Amit Mahajan, learned counsel for the petitioner. ShriGopal Verma, learned counsel represents the respondent no.1 and ShriManu Ghildyal, learned counsel appears for the respondent nos.2 and 3. This writ petition has been filed with the following prayers:- “(1)Issue a Writ, Order or direction in the nature ofcertiorari to quash the ex-parte high pitched AssessmentOrder No.ITBA/AST/S/144/2019-20/1021835160 dated06.12.2019 for A/Y 2017-18 (Annexure No.-4) passedby the Respondent No. 3 u/s 144 of the Income Tax Act,1961. (2)Issue a Writ, Order or direction in the nature ofcertiorari to quash the un-reasoned and non-speakingorder NO. ITBA/REV/F/REV7/2020-21/1031569368(1)dated 17.03.2021 (Annexure No.-9) passed by thePrincipal Commissioner of Income Tax, Allahabad u/s264 of the Income Tax Act, 1961. (3)Issue a Writ, Order or direction in the nature ofmandamus to the Respondent No. 3 to refund theamount of Rs. 42,94,572/- alongwith interest that waswithdrawn from the Bank Account of the petitioner inpursuance of the ex-parte high pitched AssessmentOrder.” At the outset, the learned counsel for the petitioner states that heis pressing the writ petition only with regard to prayer no.2 aforesaid. The learned counsel for the petitioner has placed the impugnedorder dated 17.03.2021 passed by the respondent no.2 whereby therevision filed by the petitioner under Section 264 of the Income Tax Act, 1961[1] has been dismissed. It is contended that the respondent no.2in his order has merely quoted the petition of revision filed by thepetitioner as well as the report of the Income Tax Officer, Ward-3(1),Varanasi and has dismissed the revision without considering it on itsmerits and merely on the ground of non-filing of necessary documentsand not properly pursuing his case before the Assessing Officer. It iscontended that in view of the provisions of Section 264 of the Act, amandate is cast on the authority to duly consider the revision on thebasis of merit on the grounds that have been raised by the revisionistbefore the authority. The learned counsel has placed before the CourtAnnexure-5 to the writ petition, which is the application for revisionunder Section 264 of the Act, as well as Annexure-6 to the writ petition,which is the document containing written arguments submitted onbehalf of the petitioner. The learned counsel has stated that the groundsraised in the revision were also on the merits of the case and theauthority concerned was enjoined to look into the grounds and dulyconsider them in accordance with law, which the authority has failed todo so. In support of his contention, the learned counsel for the petitionerhas relied upon a judgment of the Delhi High Court in the case ofParadigm Geophysical PTY. LTD. v. Commissioner of Income Tax(International Taxation)[2], as well as a judgment of the Supreme Courtin the matter of Sajan Kumar Bhawsinka v. Commissioner ofIncome Tax[3]. Shri Manu Ghildyal, learned counsel for the respondents, hasstrongly opposed the petition and has referred to the assessment orderand stated that it reflects that neither there was proper representation ofthe assessee before the Assessing Officer nor were the documents, thatwere requisite for purpose of the assessment, filed. It is contended thatunder the circumstances the Assessing Officer has correctly andjustifiably passed the order. It is his contention that the revisional 1 Act 2(2018) 4 ITR 4973(1999) 236 ITR 38 (SC)3(1999) 236 ITR 38 (SC) authority has considered the revision petition in its entirety as well asthe report filed by the Income Tax Officer concerned and thereafter hasrecorded its conclusion which, under the circumstances, cannot befaulted. Shri Manu Ghildyal, learned counsel for the respondents, hasstrongly opposed the petition and has referred to the assessment orderand stated that it reflects that neither there was proper representation ofthe assessee before the Assessing Officer nor were the documents, thatwere requisite for purpose of the assessment, filed. It is contended thatunder the circumstances the Assessing Officer has correctly andjustifiably passed the order. It is his contention that the revisional 1 Act 2(2018) 4 ITR 4973(1999) 236 ITR 38 (SC)3(1999) 236 ITR 38 (SC) authority has considered the revision petition in its entirety as well asthe report filed by the Income Tax Officer concerned and thereafter hasrecorded its conclusion which, under the circumstances, cannot befaulted. Having heard the learned counsel for the parties as well as onperusal of the record and the provisions of Section 264 of the Act, itappears that challenging the assessment order dated 06.12.2019, arevision was filed by the petitioner, which has been enclosed asAnnexure-5 to the writ petition. A perusal of the revision petitiondiscloses that in paragraph 4 thereof, detailed and elaborate submissionshave been made in three sub-paragraphs, which pertain to the merits ofthe case. The written submission that were filed before the respondentno.1, discloses that paragraphs 4, 5 and 6 thereof reiterate the avermentsmade in the revision petition. However, the order impugned passed by the revisional authorityhas proceeded to record the contents of the revision petition and thecontents of the report of the Income Tax Officer. The concluding part ofthe order impugned, which is the only consideration made by therevisional authority to the revision petition, reads as follows:- “As there was change in incumbent a fresh noticeof hearing was sent on 19.02.2021. Thereafter a replywas received by mail. The gist of the reply was that thecounsel of the assessee was unwell during the period. I have considered the submission made. Theassessee has contested non issue of show cause while atthe same time has totally ignored the number of timesthe case was fixed and the gross noncompliance on itspart. It is a settled law that the assessee is responsible topursue his case and file necessary documents as askedfor by the A.O. The report of the Assessing Officermentions the instances of noncompliance on the part ofthe assessee. No proper evidence in support of illness isgiven neither same plea was taken before A.O as perrecord. As per report of the Addl. CIT. the assessee wasgiven sufficient opportunity however no compliance wasmade despite seeking adjournments some times.Therefore, in my opinion under the facts and circumstances, the present petition filed by the assesseecannot be considered and is therefore dismissed.” The consideration, as noticed above, made by the respondent no.2to the revision petition is only too brief and has not considered themerits of the revision petition. In the case of Paradigm GeophysicalPTY. LTD. (supra), the Delhi High Court has observed as follows:- “17.The Jurisdictional Commissioner no doubt is anadministrative authority to the subordinate officersincluding Assessing Officer, nevertheless the Act hasconferred revisionary power on the said Commissioner.He cannot refuse to exercise the said power because theAssessing Officer was his subordinate and under hisadministrative control. The Commissioner whileexercising power under Section 264 of the Actexercises quasi-judicial powers and he must pass aspeaking and a reasoned order. He cannot abdicate hisauthority on the ground that a similar issue has arisenand is subject matter of appellate proceedings in otheryears. This would be clearly contrary to the provisionsof Section 264 of the Act. “17.The Jurisdictional Commissioner no doubt is anadministrative authority to the subordinate officersincluding Assessing Officer, nevertheless the Act hasconferred revisionary power on the said Commissioner.He cannot refuse to exercise the said power because theAssessing Officer was his subordinate and under hisadministrative control. The Commissioner whileexercising power under Section 264 of the Actexercises quasi-judicial powers and he must pass aspeaking and a reasoned order. He cannot abdicate hisauthority on the ground that a similar issue has arisenand is subject matter of appellate proceedings in otheryears. This would be clearly contrary to the provisionsof Section 264 of the Act. 18.The impugned order no doubt reflects and statesthat the contention of the petitioner was incorrect andmerits rejection but it does not assign and give anyreason for the said conclusion. The impugned ordercannot be sustained as it does not examine thecontention on merits while recording the decision.The Commissioner must give and assign reasons fortaking a particular view, even if he accepts thefindings and reasons recorded by the assessing officerand does not agree with the contention raised by theassessee. This court is, therefore, deprived and is unableto fathom the reasons and ground which were in themind of the Commissioner. The order of theCommissioner should have contained reasons for theconclusions arrived at and ought to have dealt withthe issue on merits as required under Section 264 ofthe Act.” (emphasis supplied) In the judgment of the Supreme Court in the case of SajanKumar Bhawsinka (supra), the Supreme Court observed as follows:- “The Commissioner of Income-tax by a crypticorder dated May 20, 1985, rejected the said petition by observing that there was no merit therein and mereassertion without any corroborative evidence could notbe allowed to disturb the settled matter. The writ petition filed against the aforesaid orderof the Commissioner of Income tax was dismissed byanother cryptic order wherein it was stated that afterhearing counsel for the parties, the High Court did notfind any merit in the writ petition. In our opinion, the contentions which wereraised by the appellant required a more carefulexamination and a considered decision should havebeen given both by the Commissioner of Income-taxas well as by the High Court. This having not beendone, it will be appropriate that the revision petitionfiled by the appellant under section 264 of theIncome-tax Act is reconsidered by the Commissionerof Income- tax.” (emphasis supplied) Therefore, in view of the law on the question, that whileconsidering a revision petition, the authority has to carefully examinethe case and pass a considered and reasoned decision in the matter onmerits, the impugned order dated 17.03.2021 cannot be sustained as itdoes not examine the contentions raised by the petitioner on merits. Therespondent no.2 was enjoined to assign reasons so as to reflect theconsideration of the case on merits. Accordingly, the order impugneddated 17.03.2021 passed by the respondent no.2 is quashed and thematter is remitted back to him to consider and decide the revision filedby the petitioner, afresh and on merits, in accordance with law. This writ petition is, accordingly, allowed. Order Date :- 11.11.2021 SK