Wp/4931/2022 Of Midland Polymers Limited v. Income Tax Department Central Circle 2 Indore

HIGH COURT OF MADHYA PRADESH: BENCH INDORE BEFORE HON'BLE SHRI JUSTICE VIVEK RUSIA&HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI) ON THE 11[th] OF APRIL, 2022 WRIT PETITION No. 4926 of 2022 Between:- MIDLAND POLYMERS LIMITED THROUGH DIRECTOR SHRISATYANARAYAN RATHI S/O SHRI GHISALAL RATHI , AGED ABOUT59 YEARS, OCCUPATION: BUSINESS 101, FIRST FLOOR, 251NAYAPURA, INDORE (MADHYA PRADESH) .....PETITIONER AND INCOME TAX DEPARTMENT CENTRAL CIRCLE-2, INDORE AAYAKAR1.BHAWAN, OPP. WHITE CHURCH ROAD, RESIDENCY AREA, INDORE(MADHYA PRADESH) (MADHYA PRADESH) 2. [PRINCIPAL COMMISSIONER OF INCOME TAX (CENTRAL) AAYAKAR]BHAWAN, HOSHANGABAD ROAD (MADHYA PRADESH) BHAWAN, HOSHANGABAD ROAD (MADHYA PRADESH) .....RESPONDENTS WRIT PETITION No. 4930 of 2022 Between:- MIDLAND POLYMERS LIMITED THRUGH DIRECTOR SHRISATYANARAYAN RATHI S/O SHRI GHISALAL RATHI , AGED ABOUT59 YEARS, OCCUPATION: BUSINESS 101, FIRST FLOOR, 251NAYAPURA, INDORE (MADHYA PRADESH) .....PETITIONER AND INCOME TAX DEPARTMENT CENTRAL CIRCLE-2, INDORE,1.AAYAKAR BHAWAN, OPP. WHITE CHURCH ROAD, RESIDENCYAREA, INDORE (MADHYA PRADESH) AREA, INDORE (MADHYA PRADESH) 2.[PRINCIPAL COMMISSIONER INCOME TAX (CENTRAL) AAYAKAR]BHAWAN, HOSHANGABAD ROAD (MADHYA PRADESH) BHAWAN, HOSHANGABAD ROAD (MADHYA PRADESH) .....RESPONDENTS WRIT PETITION No. 4931 of 2022 Between:- MIDLAND POLYMERS LIMITED THROUGH DIRECTOR SHRISATYANARAYAN RATHI S/O SHRI GHISALAL RATHI, 101, FIRSTFLOOR, 251 NAYAPURA (MADHYA PRADESH) .....PETITIONER AND INCOME TAX DEPARTMENT CENTRAL CIRCLE 2 INDORE INCOME1.TAX DEPARTMENT CENTRAL CIRCLE 2 AAYKAR BHAWAN, OPP.WHITE CHURCH ROAD, RESIDENCY AREA (MADHYA PRADESH) WHITE CHURCH ROAD, RESIDENCY AREA (MADHYA PRADESH) 2. [PRINCIPAL COMMISSIONER OF INCOME TAX (CENTRAL) AAYAKAR]BHAWAN, HOSHANGABAD ROAD (MADHYA PRADESH) BHAWAN, HOSHANGABAD ROAD (MADHYA PRADESH) .....RESPONDENTS Shri Ashish Goyal, learned counsel for the petitioner in all theaforesaid writ petitions. Ms. Veena Mandlik, learned counsel for the respondents. O R D E R Per Vivek Rusia, J: As the identical issues are involved in all the aforesaid writpetitions, therefore, they are being disposed of by this common order.For the sake of convenience, facts narrated in W.P. No.4926/2022 arebeing taken into consideration. The petitioner has filed this petition being aggrieved by noticeissued u/s. 148 of the Income Tax Act by the respondents whereby therespondents have re-opened the income tax return submitted by himfor the year 2013-2014. According to the petitioner, the aforesaid action is whollyillegal, arbitrary and beyond jurisdiction of the Assessing Officer.Respondent No.1 has not obtained the requisite approval of thespecified authority u/s. 151 of the Income Tax Act before the issuingthe impugned notice. The shares of the petitioner company were traded on BombayStock Exchange. The return of the income u/s. 139(1) atRs.17,08,055/- claiming refund of Rs.37,460/- was processed u/s.143(1) of the Act on 18.2.2015. According to Shri Ashish Goyal, learned for the petitioner, thereasons recorded by the Assessing Officer for re-opening of theassessment are not sustainable and suffers from non-application ofmind. In support of his contention he has placed reliance over variousjudgments passed by the High Court of Bombay and High Court ofDelhi and submits that this Court can interfere at this stage with theimpugned notice issued u/s. 148 of the Income Tax Act despiteavailability of alternate remedy of appeal. During pendency of this petition, the Assessing Officer hascompleted the assessment and has passed the final assessment orderand demand for the year 2013-2014, 2014-2015 and 2015-2016 whichthe petitioner has filed along with the application for stay. According to Shri Ashish Goyal, learned for the petitioner, thereasons recorded by the Assessing Officer for re-opening of theassessment are not sustainable and suffers from non-application ofmind. In support of his contention he has placed reliance over variousjudgments passed by the High Court of Bombay and High Court ofDelhi and submits that this Court can interfere at this stage with theimpugned notice issued u/s. 148 of the Income Tax Act despiteavailability of alternate remedy of appeal. During pendency of this petition, the Assessing Officer hascompleted the assessment and has passed the final assessment orderand demand for the year 2013-2014, 2014-2015 and 2015-2016 whichthe petitioner has filed along with the application for stay. Ms. Veena Mandlik, learned counsel appearing for therespondents/revenue, submits that now the present petition is liable tobe dismissed for want of alternative and efficacious remedy as thepetitioner is having remedy of appeal before the appellate authorityi.e. the Commissioner against the assessment order. All the groundsraised in the present petition are available to the petitioner to be raisedbefore the appellate authority. Learned counsel for the petitioner submits that it is settled lawthat where there has been violation of principle of natural justice;order or proceedings are without jurisdiction or availing of alternativeefficacious remedy subjects a person to a very lengthy proceedings,the writ petition can be entertained by this Court. It is further submitted that the demand is of Crores of rupees which the petitioneris unable to pay and for filing an appeal, there is a mandatoryrequirement of pre-deposit, hence this petition be entertained. Initially, the petitioner has filed the present petitions challengingthe show-cause notice and during pendency of the petitions, theassessment proceedings have been completed and final order has beenpassed. The petitioner has not amended the writ petition challengingthe validity of the assessment order, hence the same cannot beexamined in this petition. Admittedly, the assessment order isappellable and there is a pre-deposit condition which cannot berelaxed or waived. The petitioner is challenging the jurisdiction of theauthority mainly on the ground that there was no material before theAssessing Officer to initiate the proceedings u/s. 148 of the IncomeTax Act. In order to decide this issue, this Court is required to examinethe merits of the case which is not permissible under Article 226 of theConstitution of India. The appellate authority is competent to decideas to whether there was any material before issuing the show-causenotice or not? Even otherwise, the impugned show-cause notice doesnot survive now as the final assessment order has been passed. Hence,these petitions are liable to be dismissed. Accordingly, all these petitions are dismissed. However, it ismade clear that dismissal of these petitions shall not come in the wayof appellate authority to decide the appeal on merits of the case as thisCourt has not expressed any opinion on the merits of the case. [ VIVEK RUSIA ] [AMAR NATH (KESHARWANI)] JUDGE. JUDGE. Alok/- Digitally signed by ALOK GARGAV Date: 2022.04.19 13:12:48 +05'30'