Justice Bhuneshwar Prasad v. Principal Chief Commissioner Of Income Tax, C.r. Building, Birchand Patelpath Patnapath Patna

IN THE HIGH COURT OF JUDICATURE AT PATNACivil Writ Jurisdiction Case No.4442 of 2019 ====================================================== Justice Bhuneshwar Prasad, S/o Late Uma Prasad, C/o Vinay Kumar Verma,B-79, P.C. Colony, Lohia Nagar, P.O. and P.S. Kankarbagh, Patna-800020 ... ... Petitioner/s Versus 1.Principal Chief Commissioner of Income Tax, C.R. Building, Birchand PatelPath PatnaPath Patna 2.Commissioner of Income Tax, C.R. Building, Birchand Patel Path Patna3.Joint Commissioner of Income Tax, Lok Nayak Bhawan Dakbanglow Road,Patna3.Joint Commissioner of Income Tax, Lok Nayak Bhawan Dakbanglow Road,Patna 4.Deputy Commissioner of Income Tax, Lok Nayak Bhawan, DakbanglowRoad PatnaRoad Patna 5.Assistant Commissioner of Income Tax, Lok Nayak Bhawan, DakbanglowRoad PatnaRoad Patna 6.Income Tax Officer Ward 6 (5), LOk Nayak Bhawan, Dakbanglow Road,PatnaPatna 7.Union of India through Principal Chief Commissioner of Income Tax,Birchand Patel Marg, Patna-800001Birchand Patel Marg, Patna-800001 ... ... Respondent/s ======================================================Appearance :For the Petitioner/s: Mr.Prakash Sahay, AdvocateFor the Respondent/s: Mrs.Archana Sinha @ Archana Shahi, Advocate====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE ANIL KUMAR UPADHYAYORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 816-01-2020Heard learned counsel for the petitioner and the respondents. The present petition has been filed for issuance ofappropriate writ/writs, order/orders, direction/directions towardscancellation/quashing the order dated 28.12.2018 passed byrespondent no.6. Respondent authority has ignored the operative part of the act under which the calculation of capital gain is tobe decided. Section 48 explanation iii and Section 54 F of theIncome Tax Act has been left aside and has taxed the petitioneron hypothetical income. The order of the respondent directlyaffects the fundamental right of the petitioner and liability hasbeen imposed on hypothetical income which could not be taxedunder Section 45 and 48 of the Act. Petitioner is not a financialgood condition. Having heard the learned counsel for the petitioner,we are not inclined to entertain the present petition, more so, forthe reason that the petitioner has concealed the relevant materialinformation from the Court with regard to the status of theproject. It is only after repeated queries were put to the learnedcounsel, that the learned Additional Solicitor General invitedour attention to the fact that post execution of agreement dated30.04.2010, subject matter of lis, the construction is carried outin part and a tenant inducted into the property, from whom hugeamount of rent is being charged by the present petitioner. Learned counsel for the petitioner invites our attentionto the provisions of Sub-Section 5(a) of Section 45 of theIncome Tax Act. Well, we are of the considered view that this Court is uday/- U not a fact finding authority. As such, any order passed by theAssessing Officer, so assailed being erroneous one question offacts, has to be adjudicated not by a writ Court but by anappropriate authority constituted under the Statute. As such, on this short ground alone, we dismiss thepresent petition. (Sanjay Karol, CJ) ( Anil Kumar Upadhyay, J)