Ms Abdur Razzaque Ansari Memorial Welfare Society Through Arif Ahmed Ansari V. The Commissioner Of Income Tax And Anr

WPC/6417/2016

AI Insights

The case involves M/s. Abdur Razzaque Ansari Memorial Welfare Society challenging a show-cause notice issued by the Income Tax authorities regarding a loan of Rs. 12 lakh given without interest to Shine Medi Village (P) Ltd. The petitioner argued that the issue was previously decided in their favor by the Commissioner of Income Tax (Appeals), and thus, the subsequent notices were unwarranted. However, the court found the writ petition to be premature as the show-cause notice had not been finally decided, and the petitioner had the option to respond to the notice directly.

• Counselvise Citation: [2017] 140 COUNSELVISE.COM (IT) 674609 (HC-JHARKHAND)
• Appeal Type: Others
• Pronouncement Date: 23-08-2017
• Assessment Year: misc
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: DEEPAK ROSHAN
• Assessee Lawyers: NITIN PASARI
• Keywords: Income Tax; Jurisdiction; Loan without interest; Premature writ petition; Show cause notice
• Section: 148

Judgement Text

" IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(T) No. 6417 of 2016 M/s. Abdur Razzaque Ansari Memorial Welfare Society, a Society, registered under the Societies Registration Act, having its works at Irba, Ormanjhi, Ranchi through its Secretary Arif Ahmed Ansari son of Manzoor Ahmad Ansari Resident of Irba, P.O.- Irba, P.S- Ormanjhi, District- Ranchi ( Jharkhand) ........Petitioner Vs. 1. The Commissioner of Income Tax, Ranchi, having its Office at -5, Main Road, P.O. & P.S.- Chutia, District- Ranchi, Jharkhand. 2. The Income Tax Officer ( Exemption), Ward Ranchi, having its Office at-5, Main Road, P.O. & P.S.- Chutia, District- Ranchi, Jharkhand ............Respondents CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE RATNAKER BHENGRA ---------- For the Petitioner: Mr. Nitin Kumari Pasari, Advocate For the respondents:Mr. Deepak Roshan, Advocate ----------- 09/Dated: 23 rd August,2017 Per D.N. Patel, A.C.J. (Oral Judgment) 1. This writ petition has been preferred challenging the show-cause notice issued by the respondents dated 31st March, 2016 (Annexure 5 to the memo of this writ petition). Application was also preferred by this petitioner on 19th September, 2016 for getting reasons for issuance of notice u/s 148 of the Income Tax Act and those reasons have been given vide letter dated 3rd November,2016 (Annexure-7). Thus, Annexure 5 to be read with Annexure 7 are under challenge mainly on the ground that the issue involved in this case is in respect of grant of loan of Rs. 12 lakh without any interest by this petitioner to Shine Medi Village (P) Ltd., a partnership firm. This issue has also been raised while passing the earlier order of assessment on 29th March, 2015 for the assessment year 2011-2012. The issue was decided against this petitioner -2- thereafter, an appeal was preferred by the petitioner bearing no. 34/RAN/OTH/15-16. This appeal was preferred before the Commissioner of Income Tax (Appeals). This appeal was decided in favour of this petitioner vide order dated 11th April, 2016 (Annexure-4 to the memo of this writ petition). 2. Thus, the counsel for the petitioner submitted that in view of order passed by the Commissioner of Income Tax (Appeal) dated 11.4.2016 (annexure-4), both notices dated 31.3.2016 (Annexure-5) as well as the reasons given for issuance of this notice vide order dated 3.11.2016 (annexure- 7) deserve to be quashed and set-aside. 3. Having heard counsel for both sides and looking to the facts and circumstances of the case, we see no reason to entertain this writ petition mainly for the reasons that the show-cause notice dated 31.3.2016 with the reasons dated 3.11.2016 has been issued u/s 148 of the Income Tax Act for the assessment year 2011-12. The reasons which are given in this writ petition could have been given to the respondent- authorities for the purpose for which the show cause notice was issued. Moreover, the said show cause notice has not yet been finally decided. Thus, this writ petition is pre-mature in nature. Nothing has been decided against this petitioner by show-cause notice at Annexure-5 and reasons at Annexure-7. It may happen that show cause notice may be decided in favour of this writ petitioner. It has become fashion that every small letter of the income tax authority is being brought to the Court by the assessee, so that the respondents may not pass any order or may pass an order at the belated stage and this is how the tax liability should be decided after long lapse of time. There cannot be any other intention to challenge the show cause notice, but, to get the matter delayed. Petitioner may have a better case or a best case or better than best case, nonetheless, no writ is tenable at law when show cause notice is under challenge, especially, when there is no excess -3- jurisdiction or want of jurisdiction on the part of the respondent. In the facts of the present case the respondents have all power, jurisdiction or authority to issue such notice u/s 148 of the Income Tax Act which is at Annexure-5 and the reasons at Annexure -7 and this petitioner has all right to file reply instead of preferring writ petition. 4. Respondents are hereby directed to decide the show- cause as early as possible and practicable, keeping in mind the law points and the factual aspects raised by this petitioner. The reply has already been filed by the petitioner, as canvassed by counsel for the petitioner. 5. As this is a pre-mature writ petition which has been filed causing as much delay, as the petitioner can cause for adjudication of this show-cause notice at Annexure-5, the same is hereby dismissed with a cast of Rs. 5,000/- which will be deposited by the petitioner towards the Juvenile Justice Fund. The aforesaid amount shall be deposited before the Secretary, Department of Women, Child Development & Social Security, Government of Jharkhand, Ranhchi, which shall be kept in a separate Bank Account in a Nationalized Bank by the Secretary, Department of Women, Child Development & Social Security, Government of Jharkhand, Ranchi. 6. It is submitted that some formalities are going on for constituting a separate head for Juvenile Justice Fund by Finance Department of the Government of Jharkhand with the Treasury officials. 7. Hence, till the said formalities are completed for giving separate head to the Juvenile Justice Fund by the Finance Department, Government of Jharkhand, Ranchi, in consultation with the Treasury Officials, the aforesaid amount shall be accepted by the Secretary, Department of Women, Child Development & Social Security, Government of Jharkhand, Ranchi and the said amount shall be deposited in a separate Bank Account of a Nationalized Bank. This amount -4- shall be utilized, keeping in mind the duties to be performed by the State under the Juvenile Justice Act, 2015, for the welfare of the children, within the State of Jharkhand. 8. Copy of this order, will be sent by Registrar General to- (i) Member Secretary, Jharkhand Legal Services Authority, Nyay Sadan, Doranda at Ranchi and (ii) Secretary, Department of Women, Child & Social Security, Government of Jharkhand. ( D.N. Patel, A.C.J.) ( Ratnaker Bhengra,J.) Sharda/ Nibha "