M/S. Mahalaxmi Jewellers, Its v. Union Of India

HIGH COURT OF JUDICATURE FOR RAJASTHAN ATJODHPUR S.B. Civil Writ Petition No. 4585/2019 M/s. Mahalaxmi Jewellers, its Proprietor Smt. Santosh Soni W/oShri Rajendra Verma, Aged 44 Years, Resident of Sunaron KaBas, Ghoron Ka Chowk, Jodhpur. ----Petitioner Versus 1. Union of India, through the Principal Commissioner ofIncome Tax-2, Jodhpur.Income Tax-2, Jodhpur. 2. Income Tax Officer, Ward- 3(3), Jodhpur. ----Respondents For Petitioner(s) : Mr. Sundeep BhandawatFor Respondent(s): Mr. Sunil Bhandari HON'BLE MR. JUSTICE P.K. LOHRA 23/04/2019 Order By the instant writ petition, petitioner-assessee haschallenged summon dated 05.03.2019 (Annex.2) issued bysecond respondent. Precisely, it is urged by the petitioner that summon has beenissued under wrong provision of law. Challenge to the impugnedsummon is also laid on the ground that authority concerned is notcompetent to take action against the petitioner under the relevantquoted in the summon. On behalf of Department, reply is submitted, wherein, it isstated that inadvertently in the summon Section 131(1A) insteadof Section 131(1) of the Income Tax Act, 1961 (for short, ‘Act’) ismentioned. It is also submitted by learned counsel that mere wrong mentioning of provision of law cannot invalidate thenotice/summon. I have heard learned counsel for the parties. Having regard to the facts and circumstances of the case, inmy view, a Taxman/competent authority is not expected to issuenotices/summons mechanically without application of mind. Anycompetent authority under the taxing/fiscal statute while issuingsummon or notice is expected to act objectively within its powersand jurisdiction, else such action of the authority is vitiated in law.Moreover such action of the authority may also cause harassmentand undue hardship to genuine assessee. Upon bare perusal of Section 131 of the Act, it is abundantlyclear that second respondent is not authorized to issuenotice/summon under sub-section 1-A of the aforesaid section. In this view of the matter, the writ petition is allowed and theimpugned notice/summon is, hereby, quashed and set aside. However, before parting it is made clear that the respondentDepartment shall be at liberty to take appropriate action againstpetitioner-assessee in accordance with law. 92-AnilKC/- (P.K. LOHRA),J