Wp/3586/2016 Of M/S Naagal Garments Industries Pvt. Ltd v. Commissioner Of Income Tax I

W.P. No.3586 of 2016 01.03.2016 Shri Abhishek Oswal, Advocate for the petitioner. Shri Sanjay Lal, Advocate for the respondents. Heard counsel for the parties. As short question is involved, petition is taken up for final disposal forthwith. Counsel for the respondents,waive notice. This petition has been filed invoking Article 226 ofthe Constitution, essentially, on account of absence ofTribunal at Jabalpur. The challenge in the petition is to the order passedunder Section 263 of the Income Tax Act for theAssessment Year 2010-2011. According to the petitioner,regular appeal before the Income Tax Appellate Tribunal isavailable to the petitioner, which the petitioner has invokedby filing such appeal before the Jabalpur Bench of theTribunal. However, Bench at Jabalpur is not functional forlogistical reasons. The grievance of the petitioner is thatthe remedy of appeal guaranteed to the petitioner, has beenrendered ineffective and on the other hand, the assessmentunder Section 142(1) of the Income Tax Act is beinghastened. That, inevitably, entails in rendering thepetitioner remediless against the order passed under Section 263 of the Income Tax Act. Similar grievance wasmade in Writ Petition No.3415/2015 filed by DPRCharitable Trust. The Division Bench of this Court, videorder dated 27.11.2015, allowed the writ petition andissued certain directions. The petitioner seeks similardirections, by way of present writ petition. Counsel for the respondents submits that the Benchof the Appellate Tribunal at Jabalpur is not functional,should not be the sole basis to interfere and more sobecause it is open to the petitioner to get his appeal filedbefore the Bench at Jabalpur, transferred to Indore Benchwhere the Bench is functioning on regular basis. Thisargument, though attractive at the first blush, must berejected. The fact that the Bench of the Appellate Tribunalis available at Indore, cannot be the basis to deny remedyto the petitioner, which, otherwise, can be pursued by itbefore the Appellate Tribunal Bench at Jabalpur. It wouldhave been a different matter if the Appellate Tribunal wasnot established at Jabalpur. Having established a Bench atJabalpur, it is the obligation of the Competent Authority toensure that the Bench is functional at any given point oftime, to make the statutory remedy meaningful. Besides,the Division Bench of this Court, having recently entertained similar grievance in W.P. No.3415/2015 andanswered against the respondents, whilst adhering tojudicial propriety, we are persuaded by the argument of thepetitioner that until the Appellate Tribunal Bench atJabalpur is made functional, the interest of the petitionermust be preserved by directing the Authorities to refrainfrom hastening the assessment under Section 142(1) of theIncome Tax Act. This Court has already taken notice of thefact that the Bench at Jabalpur has become partiallyfunctional and Circuit sittings are held as and when theMembers of the Appellate Tribunal are available forholding sitting at Jabalpur. As a result, we direct the respondent Nos.1 and 2 toplace the matter before the Appellate Tribunal Bench atJabalpur for consideration as and when the Bench isavailable so as to pass appropriate orders on that appealpreferred by the writ petitioner. Until the AppellateTribunal Bench at Jabalpur passes any order on that appealproceedings, it is, but appropriate and in the interest ofjustice that the assessment proceedings under Section142(1), should not be hastened by the concerned Authorityrelying on the order passed under Section 263 of the Act.That should be done only after a formal order is passed by psm the Appellate Tribunal on the appeal preferred by thepetitioner. In other words, following the observations anddirections issued by the Division Bench of this Court inW.P. No.3415/2015, we dispose of this writ petition on thesame terms. psm the Appellate Tribunal on the appeal preferred by thepetitioner. In other words, following the observations anddirections issued by the Division Bench of this Court inW.P. No.3415/2015, we dispose of this writ petition on thesame terms. C.C. as per rules. (A. M. Khanwilkar) (Sanjay Yadav) Judge Chief Justice