RAJ KUMAR JAISWAL V. UNION OF INDIA AND 2 OTHERS

WTAX/350/2021

AI Insights

The case involves Raj Kumar Jaiswal, the petitioner, who filed a writ petition challenging an order passed by the Principal Commissioner of Income Tax, Allahabad. The writ petition primarily contested the dismissal of a revision under Section 264 of the Income Tax Act, 1961, which was dismissed on grounds of non-filing of necessary documents and not properly pursuing the case before the Assessing Officer. The petitioner argued that the revisional authority failed to consider the merits of the case, relying instead on procedural non-compliance. The court examined the submissions and precedents, noting that the revisional authority did not adequately address the merits of the case in its decision.

• Counselvise Citation: [2021] 140 COUNSELVISE.COM (IT) 732415 (HC-ALLAHABAD)
• Appeal Type: Others
• Pronouncement Date: 11-11-2021
• Assessment Year: misc
• Other Referred Cases: Paradigm Geophysical PTY. LTD. v. Commissioner of Income Tax (International Taxation), Sajan Kumar Bhawsinka v. Commissioner of Income Tax
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: GOPAL VERMA; MANU GHILDYAL
• Assessee Lawyers: AMIT MAHAJAN
• Keywords: Assessment Order; Income Tax; Revision petition; Writ of Certiorari
• Section: 144; 264

Judgement Text

"1 Court No. - 38 Case :- WRIT TAX No. - 350 of 2021 Petitioner :- Raj Kumar Jaiswal Respondent :- Union Of India And 2 Others Counsel for Petitioner :- Amit Mahajan Counsel for Respondent :- A.S.G.I.,Gopal Verma,Manu Ghildyal Hon'ble Jayant Banerji,J. Heard Shri Amit Mahajan, learned counsel for the petitioner. Shri Gopal Verma, learned counsel represents the respondent no.1 and Shri Manu Ghildyal, learned counsel appears for the respondent nos.2 and 3. This writ petition has been filed with the following prayers:- “(1) Issue a Writ, Order or direction in the nature of certiorari to quash the ex-parte high pitched Assessment Order No.ITBA/AST/S/144/2019-20/1021835160 dated 06.12.2019 for A/Y 2017-18 (Annexure No.-4) passed by the Respondent No. 3 u/s 144 of the Income Tax Act, 1961. (2) Issue a Writ, Order or direction in the nature of certiorari to quash the un-reasoned and non-speaking order NO. ITBA/REV/F/REV7/2020-21/1031569368(1) dated 17.03.2021 (Annexure No.-9) passed by the Principal Commissioner of Income Tax, Allahabad u/s 264 of the Income Tax Act, 1961. (3) Issue a Writ, Order or direction in the nature of mandamus to the Respondent No. 3 to refund the amount of Rs. 42,94,572/- alongwith interest that was withdrawn from the Bank Account of the petitioner in pursuance of the ex-parte high pitched Assessment Order.” At the outset, the learned counsel for the petitioner states that he is pressing the writ petition only with regard to prayer no.2 aforesaid. The learned counsel for the petitioner has placed the impugned order dated 17.03.2021 passed by the respondent no.2 whereby the revision filed by the petitioner under Section 264 of the Income Tax 2 Act, 19611 has been dismissed. It is contended that the respondent no.2 in his order has merely quoted the petition of revision filed by the petitioner as well as the report of the Income Tax Officer, Ward-3(1), Varanasi and has dismissed the revision without considering it on its merits and merely on the ground of non-filing of necessary documents and not properly pursuing his case before the Assessing Officer. It is contended that in view of the provisions of Section 264 of the Act, a mandate is cast on the authority to duly consider the revision on the basis of merit on the grounds that have been raised by the revisionist before the authority. The learned counsel has placed before the Court Annexure-5 to the writ petition, which is the application for revision under Section 264 of the Act, as well as Annexure-6 to the writ petition, which is the document containing written arguments submitted on behalf of the petitioner. The learned counsel has stated that the grounds raised in the revision were also on the merits of the case and the authority concerned was enjoined to look into the grounds and duly consider them in accordance with law, which the authority has failed to do so. In support of his contention, the learned counsel for the petitioner has relied upon a judgment of the Delhi High Court in the case of Paradigm Geophysical PTY. LTD. v. Commissioner of Income Tax (International Taxation)2, as well as a judgment of the Supreme Court in the matter of Sajan Kumar Bhawsinka v. Commissioner of Income Tax3. Shri Manu Ghildyal, learned counsel for the respondents, has strongly opposed the petition and has referred to the assessment order and stated that it reflects that neither there was proper representation of the assessee before the Assessing Officer nor were the documents, that were requisite for purpose of the assessment, filed. It is contended that under the circumstances the Assessing Officer has correctly and justifiably passed the order. It is his contention that the revisional 1 Act 2 (2018) 4 ITR 497 3 (1999) 236 ITR 38 (SC) 3 authority has considered the revision petition in its entirety as well as the report filed by the Income Tax Officer concerned and thereafter has recorded its conclusion which, under the circumstances, cannot be faulted. Having heard the learned counsel for the parties as well as on perusal of the record and the provisions of Section 264 of the Act, it appears that challenging the assessment order dated 06.12.2019, a revision was filed by the petitioner, which has been enclosed as Annexure-5 to the writ petition. A perusal of the revision petition discloses that in paragraph 4 thereof, detailed and elaborate submissions have been made in three sub-paragraphs, which pertain to the merits of the case. The written submission that were filed before the respondent no.1, discloses that paragraphs 4, 5 and 6 thereof reiterate the averments made in the revision petition. However, the order impugned passed by the revisional authority has proceeded to record the contents of the revision petition and the contents of the report of the Income Tax Officer. The concluding part of the order impugned, which is the only consideration made by the revisional authority to the revision petition, reads as follows:- “As there was change in incumbent a fresh notice of hearing was sent on 19.02.2021. Thereafter a reply was received by mail. The gist of the reply was that the counsel of the assessee was unwell during the period. I have considered the submission made. The assessee has contested non issue of show cause while at the same time has totally ignored the number of times the case was fixed and the gross noncompliance on its part. It is a settled law that the assessee is responsible to pursue his case and file necessary documents as asked for by the A.O. The report of the Assessing Officer mentions the instances of noncompliance on the part of the assessee. No proper evidence in support of illness is given neither same plea was taken before A.O as per record. As per report of the Addl. CIT. the assessee was given sufficient opportunity however no compliance was made despite seeking adjournments some times. Therefore, in my opinion under the facts and 4 circumstances, the present petition filed by the assessee cannot be considered and is therefore dismissed.” The consideration, as noticed above, made by the respondent no.2 to the revision petition is only too brief and has not considered the merits of the revision petition. In the case of Paradigm Geophysical PTY. LTD. (supra), the Delhi High Court has observed as follows:- “17. The Jurisdictional Commissioner no doubt is an administrative authority to the subordinate officers including Assessing Officer, nevertheless the Act has conferred revisionary power on the said Commissioner. He cannot refuse to exercise the said power because the Assessing Officer was his subordinate and under his administrative control. The Commissioner while exercising power under Section 264 of the Act exercises quasi-judicial powers and he must pass a speaking and a reasoned order. He cannot abdicate his authority on the ground that a similar issue has arisen and is subject matter of appellate proceedings in other years. This would be clearly contrary to the provisions of Section 264 of the Act. 18. The impugned order no doubt reflects and states that the contention of the petitioner was incorrect and merits rejection but it does not assign and give any reason for the said conclusion. The impugned order cannot be sustained as it does not examine the contention on merits while recording the decision. The Commissioner must give and assign reasons for taking a particular view, even if he accepts the findings and reasons recorded by the assessing officer and does not agree with the contention raised by the assessee. This court is, therefore, deprived and is unable to fathom the reasons and ground which were in the mind of the Commissioner. The order of the Commissioner should have contained reasons for the conclusions arrived at and ought to have dealt with the issue on merits as required under Section 264 of the Act.” (emphasis supplied) In the judgment of the Supreme Court in the case of Sajan Kumar Bhawsinka (supra), the Supreme Court observed as follows:- “The Commissioner of Income-tax by a cryptic order dated May 20, 1985, rejected the said petition by 5 observing that there was no merit therein and mere assertion without any corroborative evidence could not be allowed to disturb the settled matter. The writ petition filed against the aforesaid order of the Commissioner of Income tax was dismissed by another cryptic order wherein it was stated that after hearing counsel for the parties, the High Court did not find any merit in the writ petition. In our opinion, the contentions which were raised by the appellant required a more careful examination and a considered decision should have been given both by the Commissioner of Income-tax as well as by the High Court. This having not been done, it will be appropriate that the revision petition filed by the appellant under section 264 of the Income-tax Act is reconsidered by the Commissioner of Income- tax.” (emphasis supplied) Therefore, in view of the law on the question, that while considering a revision petition, the authority has to carefully examine the case and pass a considered and reasoned decision in the matter on merits, the impugned order dated 17.03.2021 cannot be sustained as it does not examine the contentions raised by the petitioner on merits. The respondent no.2 was enjoined to assign reasons so as to reflect the consideration of the case on merits. Accordingly, the order impugned dated 17.03.2021 passed by the respondent no.2 is quashed and the matter is remitted back to him to consider and decide the revision filed by the petitioner, afresh and on merits, in accordance with law. This writ petition is, accordingly, allowed. Order Date :- 11.11.2021 SK Digitally signed by JAYANT BANERJI Date: 2021.11.13 13:32:15 IST Reason: Document Owner Location: High Court of Judicature at Allahabad "