Shiva Cement Ltd. and Shivom Minerals Ltd. V. Assistant Commissioner of Income Tax, Sambalpur

WP(C)/35820/2021

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The case involves two writ petitions filed by Shiva Cement Ltd. and Shivom Minerals Ltd. against the Assistant Commissioner of Income Tax, Sambalpur, concerning the assessment proceedings under Section 153-A of the I.T. Act, 1961, following a search conducted on 24.9.2014. The petitioners sought a mandamus for the proper disposal of their applications and an extension of the time limit for final assessment, along with access to inspect the 'records of search' and the 'satisfaction note'. The court consolidated the petitions due to the similarity in facts and issues. The Revenue acknowledged the correct limitation period for the assessment proceedings, which was within two years from the date of search, not affected by the later amendment. The court declined to intervene in the jurisdictional issues raised and did not mandate the Assessing Officer to pass a speaking order during the ongoing proceedings, emphasizing the importance of not delaying the process or influencing the duties of the Assessing Authorities.

• Counselvise Citation: [2021] 140 COUNSELVISE.COM (IT) 797879 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 24-11-2021
• Assessment Year: misc
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: RADHESHYAM CHIMANKA; AVINASH KEDIA
• Assessee Lawyers: FIROZE ANDHYARUJINA; L MISHRA; NIKHIL JANGID
• Keywords: Block assessment; Jurisdiction; Limitation Period; Search and seizure; Speaking order
• Section: 153(A); 153-B

Judgement Text

" IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) Nos.35820 of 2021 Shiva Cement Ltd. & Others …. Petitioners Mr. Firoze B. Andhyarujina, Senior Advocate and M/s. L. Mishra and Nikhil S. Jangid, Advocates -versus- Assistant Commissioner of Income Tax, Sambalpur & Another …. Opp. Parties Mr. Radheshyam Chimanka, Senior Standing Counsel and Avinash Kedia, Junior Standing Counsel for Income Tax Department W.P.(C) No.35821 of 2021 Shivom Minerals Ltd. and Others …. Petitioners Mr. Firoze B. Andhyarujina, Senior Advocate and M/s. L. Mishra and Nikhil S. Jangid, Advocates -versus- The Assistant Commissioner of Income Tax, Sambalpur & Another …. Opp. Parties Mr. Radheshyam Chimanka, Senior Standing Counsel and Avinash Kedia, Junior Standing Counsel for Income Tax Department CORAM: JUSTICE JASWANT SINGH JUSTICE S.K. PANIGRAHI Order No. ORDER (Oral) 24.11.2021 3. 1. This matter is taken up through Hybrid Mode. 2. Heard learned counsel for the parties. 3. The W.P.(C) No.35820 of 2021 has been filed by the Petitioner No.1 along with three other Directors and Ex- // 2 // Page 2 of 5 Director of Petitioner No.1 company. Petitioner No.1 is M/s. Shiva Cement Ltd. having its Registered Office at P-25, Civil Township, Rourkela, Dist. Sundargarh, operating a mini cement plant at Telighana, Birigotoli near Kutra in the district of Sundargarh, Petitioner No.2 is its Director, Petitioner No.3 is the Ex-Director and Petitioner No.4 is also Director of the said Shiva Cement Ltd. The prayer in the present writ petition seeks mandamus to the opposite parties by proper disposal of the petitioners’ applications dated 04.01.2021(available at page 126 of the Paper Book) and 29.10.2021(available at page 161 of the Paper Book) by a speaking order as per law along with prayer for extension the time limit of the final assessment. In addition, a direction is prayed for allowing the inspection of the “records of search” and the “satisfaction note” by the petitioners. 4. The W.P.(C) No.35821 of 2021 is filed by three persons. The Petitioner No.1 is Shivom Minerals Ltd., a company located at P-25, Civil Township, Rourkela, Dist. Sundargarh, engaged in beneficiation of iron ore and having its plant at village Kusumdihi, Koira in Sundargarh District, Petitioner No.2 is the Director of the said Company, Petitioner No.3 is also a Director of the said Company. The instant Writ Petition seeking the identical relief as sought for by M/s. Shiva Cement Ltd., as noticed hereinabove. 5. Since the facts and issues in both the writ petitions are similar, they are taken up together and disposed by this common order. 6. The Assistant Commissioner of Income Tax, Central Circle, Sambalpur is the Assessing Officer seized of the proceedings under Section 153-A of the I.T. Act, 1961 for the block assessment for six years i.e., 2009-2010 to 2014-2015 in view of a search conducted on 24.9.2014 in the // 3 // Page 3 of 5 factory/plant premises as well as the residential premises of its Directors qua both the assesses, i.e., Shiva Cement Ltd. and Shivom Minerals Ltd. 7. Upon hearing the learned counsel for the petitioners on 22.11.2021, this Court had directed the learned Senior Standing Counsel for the Revenue to apprise the Court with regard to the stipulated period of limitation that would be applicable for completion of the Assessment Proceedings by the A.O. concerned in respect to the show-cause notices for the relevant years issued to the petitioners as detailed hereinabove. 8. At the time of resumption of hearing today, the learned counsel for the Revenue, upon instructions from the Department, very fairly concedes that the period of limitation for concluding the Assessment Proceedings under Section 153-A of the I.T. Act has been provided under Section 153-B which was in operation at the time of search on 24.9.2014 and not the period of limitation as substituted by the amendment with effect from 1.6.2016. It is not in dispute that as per the period of limitation operational with effect from 1.6.2003 before its amendment with effect from 1.6.2016 provided the period of limitation for completion of the block assessment years “within two years”. This stand of the Revenue squarely addresses the relief qua extension of limitation period. 9. As regards the plea of jurisdiction to initiate the Assessment Proceedings by the A.O. for the relevant assessment years raised in the application dated 4.1.2021 is concerned, we are unable to persuade ourselves to issue any direction to the Assessing officer as to how he should decide the said application prior to the completion of the Assessment Proceedings. Passing of such an order, at this // 4 // Page 4 of 5 stage, would amount to passing a peremptory order which would be totally beyond the scope of our jurisdiction under Article 226 of the Constitution. Needless to say, we hope that the jurisdictional issue raised by the petitioners would be addressed by the Assessing Officer concerned at the appropriate stage. In respect of the direction for deciding the application dated 29.10.2021 seeking inspection of “records of search” and the “satisfaction note”, we find that the Assessing Officer had already provided an opportunity to both the petitioners to appear before him on 16.11.2021 or 17.11.2021 (between 11 A.M. to 5 P.M.) to inspect the record and the satisfaction note. However, the petitioners in spite of receipt of the said intimation choose to stay away from doing the needful. Still, if the Assessing Authority in its discretion feels that one more opportunity is required to be given, nothing stops him from adopting such a recourse. However, no mandamus is warranted to be issued by us, because entertaining such requests made by the assessee including the direction to pass a speaking order during the proceedings, would result in unnecessarily delaying the proceedings. Further, putting pressure on the Assessing Authorities would invariably affect the due discharge of their duties, apart from opening of Pandora’s box, resulting in abuse of the process of the Court. It is to be acknowledged that in case any plea raised before the Assessing Authority and the said Authority fails to address their plea, the petitioners would be free to make a grievance before the Appellate Authority. 10. In view of the above, we are of the opinion that no exceptional case is made out by the petitioners warranting interference under Article 226 of the Constitution at this stage of the proceedings before the Assessing Officer. // 5 // Page 5 of 5 11. Accordingly, both the writ petitions are dismissed. 12. Photocopy of the order be placed on the file of the connected W.P.(C) No.35821 of 2021. (Jaswant Singh) Judge (S.K.Panigrahi) Judge AKK/PCD "