The High Court Of Madhya Pradesh v. Principal Commissioner Of Income Tax & Others

1 THE HIGH COURT OF MADHYA PRADESH W.P.No.28882/2018 (Ramshree Education of Technology Samiti, Gwalior Vs.Principal Commissioner of Income Tax & others) Gwalior, Dated:-7.8.2019 Shri Pawan Dwivedi and Shri Kunal Suryavanshi, learnedcounsel for the petitioner. Shri D.P.S. Bhadauriya, learned counsel for the respondents. (1)This petition under Article 226/227 of the Constitution isdirected against the order dated 26.9.2018 passed by the PrincipalCommissioner of Income Tax, Gwalior in exercise of the revisionalpower under section 264 of Income Tax Act, 1961, is an example of amechanical and casual manner the Revisional Authority deals withthe Revision under section 264 of 1961 Act. (2)The revision was directed against the assessment order passed by ACIT, Circle 1, Gwalior on 22/12/2016 in respect of theaccounting year 2009-10; and the demand order dated 26/12/2016whereby an amount of Rs.40,77,690/- was directed to be depositedby the petitioner -assessee bearing PAN No. anddemand notice dated 20/02/2017 under Section 221 (1) of theIncome Tax Act, 1961. (3)The said order i.e. order dated 22.12.2016 was earliersubjected to challenge in Revision which was dismissed on19.3.2018. In Writ Petition No.9180/2018 taking note of the fact thatthe Revisional Authority has not addressed the issue as regard to non 2 THE HIGH COURT OF MADHYA PRADESH W.P.No.28882/2018 (Ramshree Education of Technology Samiti, Gwalior Vs.Principal Commissioner of Income Tax & others) service of notice under sections 148, 142 (1) and 144 of 1961 Act,the order was set aside on 20.8.2018 and the matter was relegated to the Revisional Authority with the direction: “Though an exception is taken by the petitioneragainst the affidavit filed by the RevisionalAuthority justifying the order, which as per thepetitioner is impermissible, as the order underchallenge has been passed by the Authorityconcerned in her capacity of quasi-judicialAuthority. Be that as it may. Learned counselappearing for respondents fairly submits that thepetitioner/assessee had raised a ground regardingnon-service of notice under Sections 148, 142(1)and 144 of 1961 Act, which is not beingconsidered, the Revision has been dismissed onmerit. In view of the submissions made on behalfof the respondents, we are of the consideredopinion that the matter deserves to be remitted tothe Revisional Authority for fresh consideration ofthe Revision filed by the petitioner dwelling on allthe issues raised therein. The Revision be decided expeditiously,however, not later than 30 days from the date ofcommunication of this order. Petition is finally disposed of in aboveterms. No costs.” 3 THE HIGH COURT OF MADHYA PRADESH W.P.No.28882/2018 (Ramshree Education of Technology Samiti, Gwalior Vs.Principal Commissioner of Income Tax & others) (4)The Revisional Authority on remand while dwelling on theissue has cryptically dwelt as under: “(8)The assessee has raised objection regardingservice of notice u/s 148 of the I.T. Act, 1961 tohim in writ petition filed before the Honb'le HighCourt of Madhya Pradesh. The assesee'scontention in this regard is not acceptable inlights of the decision of the Hon'ble High Courtof Delhi in the case of I.M. Construction Pvt. Ltd.Vs. Commissioner of Income Tax [(2012) 24taxmann.com 162 (Delhi)/(2012) 210 taxman 83(Delhi) (MAG.) wherein it has been held thatstates that whether since assessment proceedingswere still pending and had not culminated inpassing of any order and in meanwhile, assesseehad come to know about said assessmentproceeding, assessee could be treated as havingbeen served with notice u/s 148 which was earlierissued at address mentioned in return. The facts ofthis case were that “the contention of thepetitioner company is that they have not beenserved with the notice u/s 148 of the Act and 4 THE HIGH COURT OF MADHYA PRADESH 4 THE HIGH COURT OF MADHYA PRADESH W.P.No.28882/2018 (Ramshree Education of Technology Samiti, Gwalior Vs.Principal Commissioner of Income Tax & others) Principal Commissioner of Income Tax & others) therefore, the proceedings pursuant to the notice u/s 142 (1) are void ab initio. The petitionersubmits that the notice u/s 148 is required to beserved in accordance with section 282 of the Act and in case of non-service of notice, entireproceedings are of no consequence.” (5)Though true it is that the exercise of power under section 264is confined to; (i) to have exercised a jurisdiction not vested in it bylaw; or (ii) to have failed to exercise a jurisdiction so vested; or (iii)to have acted in the exercise of its jurisdiction illegally or withmaterial irregularity. (6)The Revisional Authority is however expected to dwell on theissue by adverting to merit. (7)Apparently, the impugned order does not deal with the issue inright perspective and in consonance with the stipulation containedunder section 264 of 1961 Act. (8)In view whereof, while setting aside the impugned order dated26.9.2018, the matter is once again relegated to the RevisionalAuthority for the decision afresh in accordance with law. (9)Let the Revision be decided expeditiously, however, not laterthan 30 days from the date of communication of this order. (10)It is made clear that this Court has not expressed any opinion 5 THE HIGH COURT OF MADHYA PRADESH W.P.No.28882/2018 (Ramshree Education of Technology Samiti, Gwalior Vs.Principal Commissioner of Income Tax & others) on merit. (11)Petition is finally disposed of in above terms. No costs. (Sanjay Yadav) JudgePawar/- (Vivek Agarwal) Judge ASHISH PAWAR 2019.08.16 10:58:12 +05'30'