M/S SHIV MAHIMA TOWNSHIP PVT. LTD. V. INCOME TAX OFFICER and ORS.

SAW/226/2015

AI Insights

The case involves M/s Shiv Mahima Township Pvt. Ltd., the appellant, who challenged a show cause notice under Section 148 of the Income Tax Act, 1961, issued by the Income Tax Officer. The writ petition was filed almost a year after the issuance of the notice, and objections were submitted shortly before the assessment order was passed. The Single Judge dismissed the writ petition, suggesting that the appellant could seek redress through an appeal against the assessment order. The appellant argued that the legal question regarding the jurisdiction of the show cause notice should be examined under Article 226 of the Constitution. The Division Bench upheld the Single Judge's decision, emphasizing the availability of statutory remedies and the appropriateness of addressing such legal questions in the appellate proceedings.

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 751004 (HC-RAJASTHAN)
• Appeal Type: Others
• Pronouncement Date: 21-07-2015
• Assessment Year: misc
• Other Referred Cases: Vishwanath Engineers v. Assistant Commissioner of Income-Tax [2013] 352 ITR 549 (Guj), Tata Business Support Services Ltd. v. Deputy Commissioner of Income Tax & Others (2015) 120 DTR (Bom) 222
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: HIGH COURT
• Assessee Lawyers: R SANTHAN AM; NIRMAL GOYAL
• Keywords: Interim protection; Jurisdiction; Legal question; Reassessment; Show cause notice
• Section: 148

Judgement Text

"1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Civil Special Appeal (Writ) No.226/2015 M/s Shiv Mahima Township Pvt. Ltd. v. Income Tax Officer & Ors Date of order 21.7.2015 Hon’ble Mr. Justice Ajay Rastogi Hon’ble Mr. Justice J.K. Ranka Mr. R. Santhanam with Mr. Nirmal Kumar Goyal, for the petitioner 1. The instant appeal has been preferred against order of the learned Single Judge dated 9.2.2015. The writ petition was preferred by the appellant against a show cause notice dated 14.3.2013 issued under Section 148 of the Income Tax Act, 1961 (for short 'the Act'), and this petition was filed on 4.3.2014 i.e. after almost a year of the show cause notice served upon the appellant. In compliance of the show cause notice, objections were submitted on 12.2.2014 and the matter was listed for admission before the learned Single Judge on 12.3.2014. On that day, the learned Single Judge, while calling upon the respondents, granted interim protection that till the next date reassessment may not be finalised. Indisputably, on the next very day i.e. 13.3.2014, the regular assessment order came to be passed pursuant to the proceedings initiated in reference to show cause notice u/sec. 148 of the Act, dated 14.3.2013. 2 2. In the writ petition filed by the appellant, several questions were raised, and one of the question was that the very show cause notice issued under Section 148 of the Act does not fulfill the requirement and mandate of law, and further proceedings pursuant to the notice could not have been initiated. The show cause notice under Section 148 of the Act was served on 14.3.2013, and the writ petition came to be preferred in this court almost an year thereafter i.e. on 4.3.2014 and the objections in reference to notice were also submitted on 12.2.2014, and under these facts and circumstances, after the assessment order came to be passed on 13.3.2014, the learned Single Judge of this court dismissed the writ petition vide the order impugned on the premise that the statutory remedy of appeal is available to the appellant, if preferred against the order of assessment dated 13.3.2014. 3. It is informed to the court by the counsel appearing for the appellant that as a precaution he had advised his client to file a regular appeal before the Commissioner (Appeals) against the order of assessment dated 13.3.2014 and this fact is indeed acceptable that all these questions which have been raised in the instant special appeal against order of the learned Single Judge, including the jurisdiction of issuance of the show cause notice dated 14.3.2013, pursuant to which the proceedings were initiated, can certainly be raised in the pending 3 appeal before the appellate authority i.e. Commissioner (Appeals). 4. Counsel for the appellant submits that apart from the remedy which the appellant has availed by filing an appeal against the order of assessment dated 13.3.2014, at least a legal question regarding jurisdiction is one of the root cause and the learned Single Judge was not justified in dislodging the assessee from examining the legal question raised for consideration in the proceedings under Article 226 of the Constitution, and in support of his submission, placed reliance on the judgments of Division Bench of Gujarat and Bombay High Courts rendered in the case of Vishwanath Engineers v. Assistant Commissioner of Income-Tax [2013] 352 ITR 549 (Guj), and Tata Business Support Services Ltd. v. Deputy Commissioner of Income Tax & Others (2015) 120 DTR (Bom) 222. 5. We do not find substance in the submission made for the reason that the writ petition came to be preferred after almost a year of issuance of the show cause notice on 4.3.2014 and it appears that when the proceedings were at the final stage, writ petition was preferred to defer the proceedings by one way or the other, and apart from it, after the assessment has been made by the assessing authority on 13.3.2014, all objections including the question of jurisdiction of the authority, or 4 service of the show cause notice dated 14.3.2013 and other objections available under the law, can certainly be open to be examined, if raised, in the course of appeal preferred at the instance of the present assessee- appellant, and apart from it, the delay was also considered to be fatal, of which the learned Single Judge has taken care of in not exercising its equitable jurisdiction under Article 226 of the Constitution, and if two different views are possible on the questions raised for consideration and one view has been expressed by the learned Single Judge, and unless the view expressed is not palatable to law, view expressed is not to be disturbed merely because that is not either equitable or acceptable to the court. 6. In our considered view what has been expressed by the learned Single Judge, is certainly supported by law and does not require interference at least in an intra court appeal. 7. Consequently, the appeal deserves to be dismissed. However, it is expected of the Commissioner (Appeals) to decide the pending appeal, preferred against the order of assessment dated 13.3.2014, expeditiously and the appellant is at liberty to raise all objections that he has raised in the instant proceedings and if such objections are raised it is expected of the Commissioner (Appeals) to consider it on 5 merits and decide accordingly without being influenced/inhibited by any observations of this court. (J.K. Ranka) J. (Ajay Rastogi) J. db 42 [All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.] Deepankar Bhattacharya PS "