DEPUTY COMMISSIONER OF INCOME TAX CIRCLE 32 V. RAMA JAYSUKH PAREKH AND ORS

APOT/318/2023

AI Insights

This case involves an intra-court appeal by the Deputy Commissioner of Income Tax against an order that had allowed a writ petition on the grounds that re-assessment proceedings were barred by limitation. The appeal was filed due to the Department's claim that they were not given an opportunity to present their case, as the writ petition was allowed at the admission stage. The court found that the question of limitation involved mixed questions of law and fact, warranting a detailed examination of facts, and thus granted the Department an opportunity to present its case through an affidavit.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 728482 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 13-12-2023
• Assessment Year: misc
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: RITESH GOYEL
• Assessee Lawyers: SOUMEN BHATTACHARJEE
• Keywords: Affidavit-in-opposition; Condonation of delay; Limitation; Mixed questions of law and fact; Re-assessment proceedings

Judgement Text

"O–12 IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION ORIGINAL SIDE APOT/318/2023 IA NO: GA/1/2023, GA/2/2023 DEPUTY COMMISSIONER OF INCOME TAX CIRCLE 32 VS. RAMA JAYSUKH PAREKH & ORS. BEFORE : THE HON’BLE THE CHIEF JUSTICE T.S. SIVAGNANAM And THE HON’BLE JUSTICE HIRANMAY BHATTACHARYYA Date : 13th December, 2023 Appearance : Mr. Soumen Bhattacharjee, Adv. …for appellant Mr. Ritesh Goyel, Adv. …for respondent The Court : This intra-court appeal by the revenue is directed against the order 5th September, 2022 in WPO No. 2445 of 2022 by which the writ petition was allowed on the ground that the re-assessment proceedings is barred by limitation. We have heard Mr. Soumen Bhattacharjee, learned standing Counsel appearing for the appellant and Mr. Ritesh Goyel, learned Advocate appearing for the respondent/assessee. There is a delay of 34 days in filing the appeal. We are satisfied with the explanation offered by the appellant for not preferring the appeal within the period of limitation. Accordingly, the application for condonation of delay IA No: GA/1/2022 is allowed. Delay in filing the appeal is condoned. 2 The learned Counsel for the appellant would submit that the Department was not granted any opportunity to file their affidavit-in-opposition and the writ petition was allowed at the admission stage recording as if the learned standing counsel for the Department could not contradict the factual position with regard to the contention that the re-assessment proceedings were barred by limitation. It is further submitted that identical issue has been raised in several writ petitions and in one such case affidavit-in-opposition was filed and the elaborate submissions have been made by the learned Advocates appearing for the assessee as well as the learned standing counsel and the batch of cases are still pending before the Learned Single Bench. Therefore, it is submitted that opportunity may be granted to the Department to put forth their case on merits. We have heard the learned Counsel for the respondent/assessee on the above submission. Considering the fact that the question of limitation is not purely a question of law but a mixed questions of law and fact, it is appropriate that the Department is granted an opportunity to place facts before the Court in the form of an affidavit. Therefore, we are of the view that such opportunity should not be denied to the Department. For the above reason, the appeal is allowed and the order passed by the Learned Single Bench dated 5th September, 2022 is set aside and WPO No.2445 of 2022 is restored to the file of the Learned Single Bench. The appellant Department is directed to file their affidavit-in-opposition to the writ petition within three weeks from date and reply, if any, within a week thereafter. Let the writ petition be listed before the Learned Single Bench in the week commencing 15th January, 2024. 3 Learned Counsel appearing for the respondent/assessee submitted that in the batch of cases which are not pending before the Learned Single Bench, orders of interim stay were granted. However, since the writ petition itself was allowed in the case of the respondent/assessee and occasion did not occur for grant of any interim order, considering the fact that we have allowed the revenue’s appeal and restored the writ petition to the file of the Learned Single Bench to be heard and decided on merits, there will be an order of stay and the re-assessment proceedings for the relevant assessment year till 31st January, 2024. The stay application being IA: GA No. 2 of 2023 is also disposed of. (T.S. SIVAGNANAM) CHIEF JUSTICE (HIRANMAY BHATTACHARYYA, J.) SN. AR(CR) "