KISHORI LAL SHARMA V. COMMI OF INCOME TAX ANDORS

CW/1227/2010

AI Insights

Kishori Lal Sharma filed a writ petition against multiple respondents including the Commissioner of Income Tax and other officials, challenging the recovery proceedings initiated against him for unpaid taxes from 1992-1993. The recovery included his agricultural land and shop, which were auctioned. The petitioner argued that he was not served the initial notices, and the property belonged to a Hindu Undivided Family (HUF). However, previous legal challenges and appeals had been dismissed on grounds of alternative remedies being available, and the ITAT had modified the assessment in his favor, leading to a refund which he refused. The court dismissed the writ petition, emphasizing the petitioner's delay in filing and his acceptance of the ITAT's modified assessment.

• Counselvise Citation: [2019] 140 COUNSELVISE.COM (IT) 750854 (HC-RAJASTHAN)
• Appeal Type: Others
• Pronouncement Date: 18-01-2019
• Assessment Year: misc
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: NIKHIL SIMLOTE; R B MATHUR; RINESH GUPTA
• Assessee Lawyers: P K KASLIWAL; C M SHARMA
• Keywords: Assessment Order; Auction of property; Income Tax; Recovery proceedings; Writ petition
• Section: 143(3)

Judgement Text

"HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Writs No. 1227/2010 KISHORI LAL SHARMA S/O RAMJI LAL SHARMA AGED 55 YEARS R/O GUDHAGORJI KA DISTRICT – JHUMJHUNU RAJASTHAN ----Petitioner Versus 1. COMMISSIONER OF INCOME TAX, IIIRD JAIPUR, INCOME TAX BUILDING , STATUE CIRCLE, JAIPUR 2. TAX RECOVERY OFFICER, IONCOME TAX WARD NO. 2 ,JHUNJHUNU, RAJASTHAN. 3. INCOME TAX OFFICER, INCOME TAX WARD NO. 1 JHUNJHUNU, RAJASTHAN. 4. MAHIPAL SINGH S/O RAJNATH SINGH AGE ABOUT 45 R/O MOHALLA POST- PATUSARI DISTRICT JHUNJHUNU, RAJASTHAN. 5. SMT. KAMAL KANWAR S/O MAHENDRA SINGH AGED 49 VILLAGE GUDHAGORJI DISTRICT JHUNJHUNU, RAJASTHAN. ----Respondents For Petitioner(s) : Mr. P.K. Kasliwal with Mr. C.M. Sharma. For Respondent(s) : Mr. Nikhil Simlote for Mr. R.B. Mathur. Mr. Rinesh Gupta. HON'BLE MR. JUSTICE INDERJEET SINGH Order 18/01/2019 1. This writ petition has been filed by the petitioner with the following prayer:- “It is therefore humbly prayed that this Writ Petition may kindly be allowed and record of the case may kindly be called. Your Hon ours may kindly be pleased to quash and set aside the impugned letter dated 17.12.2004,26.12.2006 (Annexure -7 and 11) and thereon proceedings initiated by the Respondents if/any. Your Honours may kindly be pleased to decide the sanctity of the letter dated 17.12.2004, 26.12.2006 (2 of 4) [CW-1227/2010] issued by the Respondent/s (Annexure-7 and 11) in the light of provision contained in the Act and Law. Your Hon'ours further be pleased to direct the Respondent for providing the petitioner his source of survival i.e. commercial shop M/s Sharma Medical Hall and agriculture land bearing khasara nos. 120,121,122,123 and 128 having area of 2.45 hectare, both are situated at village Gudhagorjika, district Jhunjhunu, Rajasthan. This Writ Petition be allowed with the cost of the litigation in favour of the petitioner. Any other order which this Hon'ble Court deem fit and proper also is passed in favour of the Petitioners.” 2. Brief facts of the case are that the assessment order dated 22.03.2002 was passed by the Income Tax Department showing tax liability against the petitioner of the year 1992-1993 and when the petitioner failed to deposit the tax due against him, recovery proceedings were initiated against the petitioner vide order dated 17.12.2004 (Annexure-7) as well as vide order dated 26.12.2006 (Annexure-11) and in pursuance to the recovery notice the land of the petitioner measuring 2.45 hectare as well as one shop were put to auction by the Income Tax Department. In the first round of litigation, son of the petitioner Vikas Sharma filed S.B. Civil Writ Petition No.9003/2004 which was dismissed by a Co-ordinate Bench of this court on the ground of alternative remedy being available, vide order dated 18.12.2006. Being aggrieved by the order passed by the learned Single Judge, son of the petitioner filed D.B. Civil Special Appeal No.109/2007 which was also dismissed by the Division Bench of this Court vide order dated 09.03.2007 on the ground of availability of alternative remedy. After disposal of the D.B. Special Appeal the petitioner herein filed an appeal before the Appellate Authority and the said appeal was partly allowed by the Appellate Authority vide order dated 28.01.2009. (3 of 4) [CW-1227/2010] 3. Being aggrieved by the order passed by the Appellate Authority, the petitioner filed an appeal before the Income Tax Appellate Tribunal which was decided vide order dated 27.02.2009 and the orders passed by the Assessing Officer as well as by the Appellate Authority were modified and certain deductions were allowed to the petitioner. After deciding the appeal the petitioner filed the present writ petition again challenging the order certificate of recovery dated 17.12.2004 (Annexure-7) as well as dated 26.12.2006 (Annexure-11). 4. Counsel for the petitioner submits that though the order was passed by the Assessing Authority but the notices were not served upon the petitioner therefore, the petitioner was unable to file the appeal before the Appellate Authority within time. Counsel further submits that the property of the petitioner could not be put to auction by the Income Tax Department, as the same belongs to HUF. Counsel further submits that respondent be directed to give back possession of the land of the petitioner along with the shop. Counsel further submits that the appeal of the petitioner was pending when the Department has auctioned the property. 5. Counsel for the respondent submits that the notice was issued by the Assessing Authority which was duly served upon the petitioner therefore, recovery notice was also sent to the petitioner which he refused to accept. Counsel further submits that in compliance of the order passed by the ITAT dated 27.02.2009 the Department after reassessing the income of the petitioner passed the order of refund. Counsel further submits that the amount of refund was sent to the petitioner but he has refused to accept the same and prayed for dismissal of the writ petition. (4 of 4) [CW-1227/2010] 6. Heard counsel for the parties and perused the record. 7. The writ petition filed by the petitioner deserves to be dismissed for the reasons; firstly, the petitioner has challenged the order of recovery proceedings issued by the Income Tax Department in the year 2004 and well as 2006 after a delay of 4 years i.e. in 2010; secondly, the Income Tax Appellate Tribunal on the appeal being filed by the petitioner passed the order of reassessing all the income of the petitioner and in compliance of the order passed by the ITAT, the Department has offered the refund to the petitioner which he has refused to accept; thirdly, the petitioner has failed to challenge the order passed by the Income Tax Appellate Tribunal, therefore, this court finds that the petitioner is satisfied with the order passed by the ITAT. 8. In that view of the matter, the writ petition filed by the petitioner stands dismissed however, the petitioner is free to take amount of refund from the Department if, he so chooses. (INDERJEET SINGH),J MG/51 "