Wp/11863/2021 Of Sanjiv Tewari v. The Deputy Commissioner Of Income Tax

IN THE HIGH COURT OF MADHYA PRADESHAT JABALPURBEFORE HON'BLE SHRI JUSTICE SHEEL NAGU & HON'BLE SHRI JUSTICE MANINDER S BHATTI WRIT PETITION No.11845 of 2021 Between:- 1.RAVI SHANKAR SINGH S/O GIRIJAPRASAD SINGH AGED ABOUT 47YEARS, OCCUPATION- BUSINESSMAN.R/O 2/41, RAMNAGAR, UTTARI, DUDDHISONBHADRA, U.P. .....PETITIONER (BY SHRIPRASHANTSHUKLA,ADVOCATE) AND 1.THE DEPUTY COMMISSIONER OFINCOME TAX, CENTRAL CIRCLE,JABALPUR R/O 2ND FLOOR, 291,RAMNATH BUILDING, NAPIER TOWN,JABALPUR. INCOME TAX, CENTRAL CIRCLE,JABALPUR R/O 2ND FLOOR, 291,RAMNATH BUILDING, NAPIER TOWN,JABALPUR. 2.THE JOINT COMMISSIONER OFINCOME TAX, CENTRAL RANGE,BHOPAL R/O AAYKARBHAWAN, 48 ARERA HILLS, HOSHANGABAD ROAD,BHOPAL, M.P. 3.THE PRICIPAL COMMISSIONER OFINCOME TAX , CENTRAL RANGE,BHOPAL, R/O AAYKARBHAWAN, 48ARERA HILLS HOSHANGABAD ROAD,BHOPAL, M.P.INCOME TAX , CENTRAL RANGE,BHOPAL, R/O AAYKARBHAWAN, 48ARERA HILLS HOSHANGABAD ROAD,BHOPAL, M.P. ....RESPONDENTS (BY SHRI SANJAY LAL, ADVOCATE) WRIT PETITION No.11840 of 2021 Between:- 1.SURENDRA SINGH S/O SHRI RAMSINGH AGED ABOUT 47 YEARS,OCCUPATION-BUSINESS,R/OAMBEDKAR NAGAR, KHADIA SHAKTINAGAR, SONBHADRA, U.P. SINGH AGED ABOUT 47 YEARS,OCCUPATION-BUSINESS,R/OAMBEDKAR NAGAR, KHADIA SHAKTINAGAR, SONBHADRA, U.P. .....PETITIONER (BY SHRIPRASHANTSHUKLA,ADVOCATE) AND 1.THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, JABALPUR R/O 2ND FLOOR, 291, INCOME TAX, CENTRAL CIRCLE, JABALPUR R/O 2ND FLOOR, 291, RAMNATH BUILDING, NAPIER TOWN, JABALPUR. 2.THE JOINT COMMISSIONER OF INCOME TAX, CENTRAL RANGE, BHOPAL R/O AAYKARBHAWAN, 48 ARERA HILLS, HOSHANGABAD ROAD, BHOPAL, M.P. 3.THE PRICIPAL COMMISSIONER OF INCOME TAX , CENTRAL RANGE, BHOPAL, R/O AAYKARBHAWAN, 48 ARERA HILLS HOSHANGABAD ROAD, BHOPAL, M.P.OF INCOME TAX , CENTRAL RANGE, BHOPAL, R/O AAYKARBHAWAN, 48 ARERA HILLS HOSHANGABAD ROAD, BHOPAL, M.P. ....RESPONDENTS (BY SHRI SANJAY LAL, ADVOCATE) WRIT PETITION No.11842 of 2021 Between:- 1.NEETU SINGH W/O RAVISHANKARSINGH AGED ABOUT 44 YEARS,SINGH AGED ABOUT 44 YEARS, OCCUPATION- BUSINESS, R/O 2/41,RAMNAGAR,UTTARI,DUDDHISONBHADRA, U.P.RAMNAGAR,UTTARI,DUDDHISONBHADRA, U.P. .....PETITIONER (BY SHRIPRASHANTSHUKLA,ADVOCATE) AND 1.THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, JABALPUR R/O 2ND FLOOR, 291, RAMNATH BUILDING, NAPIER TOWN, JABALPUR. 2.THE JOINT COMMISSIONER OF INCOME TAX, CENTRAL RANGE, BHOPAL R/O AAYKARBHAWAN, 48 ARERA HILLS, HOSHANGABAD ROAD, BHOPAL, M.P. 3.THE PRICIPAL COMMISSIONER OF INCOME TAX , CENTRAL RANGE, BHOPAL, R/O AAYKARBHAWAN, 48 ARERA HILLS HOSHANGABAD ROAD, BHOPAL, M.P. ....RESPONDENTS (BY SHRI SANJAY LAL, ADVOCATE) WRIT PETITION No.11843 of 2021 Between:- 1.OM PRAKASH SINGH S/O INDRA DEOSING AGED ABOUT 51 YEARS,OCCUPATION-BUSINESS,R/OAMBEDKAR NAGAR, KHADIA SHAKTINAGAR, SONBHADRA, U.P. .....PETITIONER (BY SHRIPRASHANTSHUKLA,ADVOCATE) AND 1.THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, JABALPUR R/O 2ND FLOOR, 291, RAMNATH BUILDING, NAPIER TOWN, JABALPUR. 2.THE JOINT COMMISSIONER OF INCOME TAX, CENTRAL RANGE, BHOPAL R/O AAYKARBHAWAN, 48 ARERA HILLS, HOSHANGABAD ROAD, BHOPAL, M.P.INCOME TAX, CENTRAL RANGE, BHOPAL R/O AAYKARBHAWAN, 48 ARERA HILLS, HOSHANGABAD ROAD, BHOPAL, M.P. 3.THE PRICIPAL COMMISSIONER OF INCOME TAX , CENTRAL RANGE, BHOPAL, R/O AAYKARBHAWAN, 48 ARERA HILLS HOSHANGABAD ROAD, BHOPAL, M.P.INCOME TAX , CENTRAL RANGE, BHOPAL, R/O AAYKARBHAWAN, 48 ARERA HILLS HOSHANGABAD ROAD, BHOPAL, M.P. ....RESPONDENTS (BY SHRI SANJAY LAL, ADVOCATE) WRIT PETITION No.11844 of 2021 Between:- .....PETITIONER (BY SHRIPRASHANTSHUKLA,ADVOCATE) AND 1.THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, JABALPUR R/O 2ND FLOOR, 291, RAMNATH BUILDING, NAPIER TOWN, JABALPUR. 2.THE JOINT COMMISSIONER OF INCOME TAX, CENTRAL RANGE, BHOPAL R/O AAYKARBHAWAN, 48 ARERA HILLS, HOSHANGABAD ROAD, BHOPAL, M.P.INCOME TAX, CENTRAL RANGE, BHOPAL R/O AAYKARBHAWAN, 48 ARERA HILLS, HOSHANGABAD ROAD, BHOPAL, M.P. 3.THE PRICIPAL COMMISSIONER OF INCOME TAX , CENTRAL RANGE, BHOPAL, R/O AAYKARBHAWAN, 48 ARERA HILLS HOSHANGABAD ROAD, BHOPAL, M.P.INCOME TAX , CENTRAL RANGE, BHOPAL, R/O AAYKARBHAWAN, 48 ARERA HILLS HOSHANGABAD ROAD, BHOPAL, M.P. ....RESPONDENTS (BY SHRI SANJAY LAL, ADVOCATE) WRIT PETITION No.11844 of 2021 Between:- 1.SUNILKUMARSINGHS/OCHANDESHWAR PRASAD SINGH AGEDABOUT 53 YEARS, OCCUPATION-BUSINESS. R/O AMBEDKAR NAGAR,KHADIASHAKTONAGAR,SONBHADRA, U.P. .....PETITIONER (BY SHRIPRASHANTSHUKLA,ADVOCATE) AND 1.THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, JABALPUR R/O 2ND FLOOR, 291, RAMNATH BUILDING, NAPIER TOWN, JABALPUR. 2.THE JOINT COMMISSIONER OF INCOME TAX, CENTRAL RANGE, BHOPAL R/O AAYKARBHAWAN, 48 ARERA HILLS, HOSHANGABAD ROAD, BHOPAL, M.P. 3.THE PRICIPAL COMMISSIONER OF INCOME TAX , CENTRAL RANGE, BHOPAL, R/O AAYKARBHAWAN, 48 ARERA HILLS HOSHANGABAD ROAD, BHOPAL, M.P.INCOME TAX , CENTRAL RANGE, BHOPAL, R/O AAYKARBHAWAN, 48 ARERA HILLS HOSHANGABAD ROAD, BHOPAL, M.P. ....RESPONDENTS (BY SHRI SANJAY LAL, ADVOCATE) WRIT PETITION No.11853 of 2021 Between:- 1.MINETECHENGINEERSINDIAPRIVATE.LTDTHROUGHITSDIRECTOR, SANJIV TEWARI S/OSURENDRANATHTEWARIAGEDABOUT 56 YEARS, OCCUPATION-BUSINESS, R/O AMBEDKAR NAGAR,KHADIA,SHAKTINAGAR,SONBHADRA, U.P. .....PETITIONER (BY SHRI PRASHANT SHUKLA, ADVOCATE) AND 1.THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, JABALPUR R/O 2ND FLOOR, 291, RAMNATH BUILDING, NAPIER TOWN, JABALPUR. 2.THE JOINT COMMISSIONER OF INCOME TAX, CENTRAL RANGE, BHOPAL R/O AAYKARBHAWAN, 48 ARERA HILLS, HOSHANGABAD ROAD, BHOPAL, M.P. 3.THE PRICIPAL COMMISSIONER OF INCOME TAX , CENTRAL RANGE, BHOPAL, R/O AAYKARBHAWAN, 48 ARERA HILLS HOSHANGABAD ROAD, BHOPAL, M.P. ....RESPONDENTS (BY SHRI SANJAY LAL, ADVOCATE) WRIT PETITION No.11863 of 2021 Between:- 1.SANJIV TEWARI S/O SURENDRANATHTEWARI AGED ABOUT 56 YEARS,OCCUPATION- BUSINESS, R/O B 38/46,MOHINIKUNJ,MAHMOORGANJ,VARANASI, U.P. .....PETITIONER (BY SHRIPRASHANTSHUKLA,ADVOCATE) AND 1.THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, JABALPUR R/O 2ND FLOOR, 291, RAMNATH BUILDING, NAPIER TOWN, JABALPUR. 2.THE JOINT COMMISSIONER OF INCOME TAX, CENTRAL RANGE, BHOPAL R/O AAYKARBHAWAN, 48 ARERA HILLS, HOSHANGABAD ROAD, BHOPAL, M.P. 3.THE PRICIPAL COMMISSIONER OF INCOME TAX , CENTRAL RANGE, BHOPAL, R/O AAYKARBHAWAN, 48 ARERA HILLS HOSHANGABAD ROAD, BHOPAL, M.P. ....RESPONDENTS (BY SHRI SANJAY LAL, ADVOCATE) WRIT PETITION No.11936 of 2021 Between:- 1.M/S ROYAL CONSTRUCTION, NEETUSINGH W/O RAVISHANKAR SINGHAGED ABOUT 44 YEARS, OCCUPATION-BUSINESS,R/OWARDNO.8, PRAIBHAPURAMROBERTSGANJ, SONBHADRA, U.P. COLONY (BY SHRIADVOCATE) .....PETITIONER PRASHANT SHUKLA, AND 1.THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, JABALPUR R/O 2ND FLOOR, 291, RAMNATH BUILDING, NAPIER TOWN, JABALPUR. 2.THE JOINT COMMISSIONER OF INCOME TAX, CENTRAL RANGE, BHOPAL R/O AAYKARBHAWAN, 48 ARERA HILLS, HOSHANGABAD ROAD, BHOPAL, M.P. 3.THE PRICIPAL COMMISSIONER OF INCOME TAX , CENTRAL RANGE, BHOPAL, R/O AAYKARBHAWAN, 48 ARERA HILLS HOSHANGABAD ROAD, BHOPAL, M.P. ....RESPONDENTS (BY SHRI SANJAY LAL, ADVOCATE WRIT PETITION No.12660 of 2021 Between:- PRAIBHAPURAMROBERTSGANJ, SONBHADRA, U.P. COLONY (BY SHRIADVOCATE) .....PETITIONER PRASHANT SHUKLA, AND 1.THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, JABALPUR R/O 2ND FLOOR, 291, RAMNATH BUILDING, NAPIER TOWN, JABALPUR. 2.THE JOINT COMMISSIONER OF INCOME TAX, CENTRAL RANGE, BHOPAL R/O AAYKARBHAWAN, 48 ARERA HILLS, HOSHANGABAD ROAD, BHOPAL, M.P. 3.THE PRICIPAL COMMISSIONER OF INCOME TAX , CENTRAL RANGE, BHOPAL, R/O AAYKARBHAWAN, 48 ARERA HILLS HOSHANGABAD ROAD, BHOPAL, M.P. ....RESPONDENTS (BY SHRI SANJAY LAL, ADVOCATE WRIT PETITION No.12660 of 2021 Between:- 1.RAJNISH CHOPRA S/O BHIMSENCHOPRA AGED ABOUT 47 YEARS,OCCUPATION- BUSINESS, R/O WARD NO.8 , GAYATRI MANDIR ROAD,SINGRAULI, M.P. .....PETITIONER (BY SHRIPRASHANTSHUKLA,ADVOCATE) AND 1.THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, JABALPUR R/O 2ND FLOOR, 291, RAMNATH BUILDING, NAPIER TOWN, JABALPUR. 2.INCOME TAX DEPARTMENT THROUGHTHE JOINT COMMISSIONER OF INCOME TAX, CENTRAL RANGE, BHOPAL R/O AAYKARBHAWAN, 48 ARERA HILLS, HOSHANGABAD ROAD, BHOPAL, M.P. 3.THE PRICIPAL COMMISSIONER OF INCOME TAX , CENTRAL RANGE, BHOPAL, R/O AAYKARBHAWAN, 48 ARERA HILLS HOSHANGABAD ROAD, BHOPAL, M.P. ....RESPONDENTS (BY SHRI SANJAY LAL, ADVOCATE) ------------------------------------------------------------------------------------------- Reserved on :30.03.2022Passed on : 14.06.2022 ------------------------------------------------------------------------------------------- Per : Justice Sheel Nagu : ORDER The petitions registered as W.P. No.11845/2021, W.P. No.11840/2021,W.P. No.11842/2021, W.P. No.11843/2021, W.P. No.11844/2021, W.P.No.11853/2021, W.P. No.11863/2021, W.P. No.11936/2021 & W.P.No.12660/2021 involve common question of law based on similar factualmatrix and, therefore, are being decided by the present common order. Thefactual matrix of W.P. No.11845/2021 is considered for disposal of all theconnected matters. 2.Learned counsel for rival parties are heard on the question of admissionso also on final disposal. 3.Learned counsel for petitioner, Shri Prashant Shukla while assailing theimpugned assessment order dated 21.04.2021 passed by DeputyCommissioner of Income Tax Central Circle, Jabalpur contained in AnnexureP/1 pertaining to assessment year 2013-14 to 2018-19 and 2019-20 raised thefollowing grounds :- (i)The impugned order of assessment (Annexure P/1) ispassed without affording reasonable opportunity of being heardto the petitioner. (ii)The impugned assessment order has been passed posthastewithout waiting for the outcome of Writ tax-121&137/2021 pending before the Allahabad High Court inwhich petitioner herein is one of the petitioners and in which the order for transfer of assessment passed u/S 127 of the IncomeTax Act,1961 (for brevity “the IT Act”) is assailed. (iii)The notice for penalty has been issued without firstpassing an assessment order. (i)The impugned order of assessment (Annexure P/1) ispassed without affording reasonable opportunity of being heardto the petitioner. (ii)The impugned assessment order has been passed posthastewithout waiting for the outcome of Writ tax-121&137/2021 pending before the Allahabad High Court inwhich petitioner herein is one of the petitioners and in which the order for transfer of assessment passed u/S 127 of the IncomeTax Act,1961 (for brevity “the IT Act”) is assailed. (iii)The notice for penalty has been issued without firstpassing an assessment order. 4.Learned counsel for the Revenue on the other hand submits that dueand sufficient opportunity was afforded to the petitioner during theproceedings of search and seizure operations conducted u/S. 132 of the IT Acton nine residential premises, one business premises and seven bank lockers ofRavishankar Group, Singrauli (M.P.) on 25.05.2018. It is submitted by theRevenue that in terms of the procedure prescribed u/S. 132 of the IT Act, sixnotices u/S. 153A of the IT Act were issued to the petitioner on 20[th] January,2020 in respect of different assessment years from 2013-14 to 2018-19. TheRevenue further submits that the petitioner was called upon by these noticesto furnish return in prescribed form for each of the six assessment years. Inresponse, the petitioner submitted letter dated 04.01.2021 stating that thereturn filed u/S 139 of the IT Act for the respective assessment years may betreated as return of income filed u/S 153A of the IT Act for the six assessmentyears under scanner. The Revenue further submits that based on theinformation so provided by the owner, the same was assessed and theobjections raised by the petitioner were found to be untenable and thusrejected on 18.02.2020. The Revenue further submits that while doing so, theAssessing Officer took into account the pending Writ petition in the AllahabadHigh Court assailing the order passed u/S 127 of the IT Act for centralizationof a case of assessee with the Central Circle, Jabalpur which came intoexistence after restructuring of Department in 2014. The Revenue also submits that since business activities of the petitioner are carried out inSingrauli which is in Madhya Pradesh, search was carried out by theinvestigating wing of Jabalpur and therefore centralization of the case wassought and granted with the Central Circle, Jabalpur. It is urged by theRevenue that petitioner filed returns of computation of income and the replyto the letter u/S 142(1) which were examined and after scrutiny, followingvarious discrepancies as mentioned in the impugned assessment order werenoticed including unexplained expenditure, concealing of income, failure todisclose relevant details etc which led to passing of the impugned assessmentorder u/S 153A read with Section 143(3) of the IT Act for assessment year2013-14 to 2018-19 and assessment u/S 143(3) of the IT Act for assessmentyear 2019-20 interest if applicable u/Ss 234(A), 234(B), 234(C) and 234(D) ofthe IT Act were also directed to be issued. Notice for penalty pu/S 271(1)(c)of IT Act for assessment year 2013-14 to 2016-17 were also issued. Furtherimpugned notice u/S 270(A) of the IT Act for assessment year 2017-18 andpenalty notice u/S 271(AAB) of the IT act for assessment year 2018-19 and2019-20 were issued. The impugned assessment order was passed by by JointCommissioner of Income Tax Central Range, Bhopal. 4.1The aforesaid assessment order is under challenge herein primarily onaccount of non affording of opportunity of being heard to the petitioner. 5.Learned counsel for petitioner has though vehemently argued qua issueof non affording of opportunity but has not been able to point out a singlestatutory provision relating to affording of opportunity contained in any of therelevant provisions of the IT Act which according to the the petitioner hasbeen breached. 4.1The aforesaid assessment order is under challenge herein primarily onaccount of non affording of opportunity of being heard to the petitioner. 5.Learned counsel for petitioner has though vehemently argued qua issueof non affording of opportunity but has not been able to point out a singlestatutory provision relating to affording of opportunity contained in any of therelevant provisions of the IT Act which according to the the petitioner hasbeen breached. 6.A bare perusal of the impugned assessment order reveals that noticewas issued to the petitioner during the conduction of search and seizureoperations which were duly responded to by the petitioner by contending thatthe returns already filed by him be treated as returns for the purpose of searchand seizure proceedings.More so, the said return of computation of incomeand reply of the petitioner were taken into account before the impugnedassessment order was passed. During the search and seizure operations,discrepancies were found which indicated towards tax evasion. 7.The ground taken by the petitioner of pendency of the litigation in theAllahabad High Court is of no assistance since the cause raised therein isregarding legality and validity of the order of transfer passed u/S 127 of the ITAct. Assuming without admitting that the said petition is allowed by theAllahabad High Court, even then the search and seizure operation which ledto the passing of impugned order herein would not be adversely affected.More so, Allahabad High Court has not granted any interim order in favour ofthe petitioner. 8.As regards the ground of penalty notice having been issued withoutpassing an assessment order, the same further does not assist the petition sincethe impugned order is an order of assessment arrived at after conduction ofdetailed search and seizure operation of assessment proceedings which foundthe petitioner to be involved in tax evasion and therefore it was well withinthe jurisdiction of the Assessing Officer to have issued notice for penalty. 9.In the conspectus of above discussion and the failure of the petitionersto make out a case of denial of reasonable opportunity of being heard, this Court declines interference, especially when the petitioner has an alternativestatutory remedy under the IT Act which has not been availed yet. 10.Consequently, this Court declining interference extends liberty to thepetitioners to avail the alternative remedy before the appropriate AppellateAuthority which if availed within a period of 60 days from today shall beconsidered and decided on its own merits without being dismissed onlimitation alone, provided the petitioner complies with all other statutoryrequirements. (SHEEL NAGU) JUDGE (MANINDER S BHATTI) JUDGE YS Digitally signed by YOGESH KUMAR SHIRVASTAVA Date: 2022.06.15 14:33:47 +05'30' -16 - -17 -