Mr.sham v. Heard Learned Counsel For Both The Parties

osk 15-aost-275-2019.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTION APPEAL FROM ORDER (ST.) NO. 275 OF 2019WITH CIVIL APPLICATION (ST.) NO. 276 OF 2019 Sanjivani Suresh Thanekar & Ors.…AppellantsV/s.The Commissioner, Income TaxDepartment, Ward-3, Thane & Ors.…Respondents Mr.Anil S. Kharatmol for the Appellant.Mr.Anil S. Kharatmol for the Appellant. Mr.Sham V. Walve for Respondent Nos.1 and 2. Mr.Arif Bookwala a/w. Mr.Deepak Chitnis, Ms.Sonali Dalvi,Ms.Jinal Rathi, Ms.Aditi Yadav, , Mr.Mangesh Parte i/b. DeepakChitnis Chiparikar for Respondent No.3.Ms.Jinal Rathi, Ms.Aditi Yadav, , Mr.Mangesh Parte i/b. DeepakChitnis Chiparikar for Respondent No.3. CORAM : DR.SHALINI PHANSALKAR-JOSHI, J. DATE : 28[th] JANUARY, 2019. P.C. : 1]Heard learned counsel for both the parties. 2]This Appeal takes an exception to the order dated25/12/2018 passed by the City Civil Court, Mumbai, thereby rejectingthe ad-interim relief in the Draft Notice of Motion in S.C. Suit (Stamp) No.16996 of 2018. osk 15-aost-275-2019.odt 3]The said Notice of Motion was taken out by the Appellantherein restraining Respondent Nos.1 and 2 from taking any action inpursuance of the notice dated 05/12/2018 issued in respect ofassessment proceedings under Section 147 of the Income Tax Act,1961, for Annual Year 2011-12. 4]Learned counsel for the Respondent brings to the notice ofthis Court Section 293 of the Income Tax Act, 1961 which clearlyprovides that no suit shall be brought in any Civil court to set-aside ormodify any proceeding taken or order made under this Act; and noprosecution, suit or proceeding shall lie against the Government orany Officer of the Government for anything in good faith done orintended to be done under this Act. As the suit is filed challenging theassessment proceedings under Section 147 of the Income Tax Act, thebar under Section 293 of the Income Tax Act clearly comes in thepicture and therefore, the trial Court has rightly held that it has nojurisdiction to try and entertain the suit. 5]Learned counsel for the Appellant then submits thatRespondent Nos.3 and 4 should be restrained from carrying outconstruction activities in the plot of the Appellant. However, such2/3 osk 15-aost-275-2019.odt prayer does not appear to have been made before the trial Court, asthe impugned order passed by the trial Court does not refer to anysuch relief advanced by learned counsel for the Appellant. Otherwisealso without making out prima-facie case, no such ad-interim reliefcan be granted. Hence, the Appeal being without merit standsdismissed. 6]In view of dismissal of the Appeal, nothing survives in theCivil Application and hence, stands disposed of. [DR.SHALINI PHANSALKAR-JOSHI, J.]