Mrs. Anita Kumari V. Union of India

CWJC/25640/2019

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Mrs. Anita Kumari filed a writ petition against the Union of India and various Income Tax officials challenging a notice dated 21.11.2019 issued for completing the assessment proceeding under section 143(3) of the Income Tax Act, 1961 for the assessment year 2016-17. The notice pertained to a capital gain of Rs.6,91,135 calculated on a hypothetical income, which the petitioner argued was contrary to the provisions of section 48 explanation iii and section 54F of the Income Tax Act. The petitioner contended that the notice affected her fundamental rights as it imposed a liability on a hypothetical income which could not be taxed under sections 45 and 48 of the Act. The High Court of Patna, after hearing the arguments, decided to dispose of the writ petition by referencing a similar case (C.W.J.C. No.3364 of 2019) which had already been decided.

• Counselvise Citation: [2020] 140 COUNSELVISE.COM (IT) 684467 (HC-PATNA)
• Appeal Type: Others
• Pronouncement Date: 24-11-2020
• Assessment Year: misc
• Other Referred Cases: C.W.J.C. No.3364 of 2019 (Anant Kumar Verma Vs. Principal Chief Commissioner of Income Tax and others)
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: RISHI RAJ SINHA; ARCHANA SINHA
• Assessee Lawyers: PRAKASH SAHAY
• Keywords: Capital Gain; Fundamental Right; Hypothetical income; Quashing notice
• Section: 143(3); 48; 54F; 45

Judgement Text

"IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.25640 of 2019 ====================================================== Mrs. Anita Kumari W/o Mr. Gyan Prakash, Flat No. 301 Sharanam Apartment, Nehru Nagar, Patliputra More, P.O. and P.S. Patlliputra, Patna 800013. ... ... Petitioner/s Versus 1. Union of India through Principal Chief Commissioner of Income Tax, Birchand Patel Marg, Patna. 2. Principal Chief Commissioner of Income Tax, C.R. Building, Birchand Patel Path Patna 800001. 3. Commissioner of Income Tax, C.R. Building, Birchand Patel Path Patna 800001. 4. Joint Commissioner of Income Tax, Lok Nayak Bhawan, Dakbanglow Road, Patna 800001. 5. Deputy Commissioner of Income Tax, Lok Nayak Bhawan, Dakbanglow Road, Patna 800001. 6. Assistant Commissioner of Income Tax, Lok Nayak Bhawan, Dakbanglow Road, Patna 800001. 7. Income Tax Officer ward 6 (4), Lok Nayak Bhawan, Dakbanglow Road, Patna 800001. ... ... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr.Prakash Sahay, Advocate For the Respondent/s : Mr. Rishi Raj Sinha Mrs. Archana Sinha, Advocates ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE S. KUMAR) Date : 24-11-2020 Heard the parties. Petitioner has prayed for following relief:- “For issuance of appropriate writ/writs, order/orders, direction/directions towards cancellation/quashing the notice dated 21.11.2019 issued by respondent 7 for completing the Assessment proceeding u/s 143(3) of the Income Tax Act, Patna High Court CWJC No.25640 of 2019 dt.24-11-2020 2/3 1961 for the assessment year 2016-17 for capital gain of Rs.6,91,135 on a Hypothetical Income calculated by the respondent. Respondent authority has ignored the operative part of the act under which the calculation of capital gain is to be decided. Section 48 explanation iii and Section 54 F of the Income Tax Act has been left aside and has taxed the petitioner on hypothetical income. The notice of the respondent directly affects the fundamental right of the petitioner and liability has been imposed on hypothetical income which could not be taxed under Sections 45 and 48 of the Act. There is no construction till date has taken place by the builder on the agreement and nor any plan has been sanctioned till date. Impugned notice dated 21.11.2019 (Annexure-2) may kindly be quashed.” This writ petition was directed to be tagged with C.W.J.C. No.3364 of 2019 (Anant Kumar Verma Vs. Principal Chief Commissioner of Income Tax and others) as issue raised in present writ petition is similar to that of issue raised in C.W.J.C. No.3364 of 2019 (Anant Kumar Verma Vs. Principal Chief Commissioner of Income Tax and others). It has been brought to the notice of this Court that C.W.J.C. No.3364 of 2019 (Anant Kumar Verma Vs. Principal Chief Commissioner of Income Tax and others) has been disposed of by order dated 16.01.2020 and present writ petition is squarely covered by said judgment and order and is disposed of in similar terms. Writ petition is disposed of with liberty to petitioner to Patna High Court CWJC No.25640 of 2019 dt.24-11-2020 3/3 file appeal before the appellate authority within two weeks and appellate authority shall decide the appeal within four weeks from the date of filing of such appeal. The delay in filing appeal shall be condoned by the appellate authority as the matter remained pending before this Court and appellate authority shall decide the appeal on its own merit within aforesaid period as indicated above. Sanjay/- (Sanjay Karol, CJ) ( S. Kumar, J) AFR/NAFR NAFR CAV DATE NA Uploading Date 30.11.2020 Transmission Date NA "