SMT BEENA MALPANI vs. COMMI OF INCOME TAX ORS

PDF · subscribers
CW/9641/2012HC RajasthanRJHC02003345201224 April 2014Author: MUNISHWAR NATH BHANDARI7 pages
AI SummaryDismissed

What did the High Court hold?

The High Court held that the issue of jurisdiction, if any, cannot be raised after a period of 30 days from the date of filing of the return, as stipulated in Section 124(3) of the Income Tax Act, 1961. The Court noted that while Section 127 of the Act empowers the transfer of cases by the Director General or Commissioner, such transfer is not mandatory and requires recording reasons. The Court found that convenience of the assessee alone is not a sufficient ground for transfer, especially when the record for the relevant year is maintained in Beawar. Transferring the case would necessitate transferring these records, which are to be maintained at Beawar. The Court also observed that the petitioner could contest the matter through an advocate, thus the inconvenience was not significant enough to warrant a transfer. Consequently, the Court found no merit in the writ petitions.

What were the facts?

The petitioner, Smt. Beena Malpani, filed multiple writ petitions challenging notices issued under Section 148 of the Income Tax Act, 1961. She also sought the transfer of her case from Beawar (Rajasthan) to Jalgaon (Maharashtra) on grounds of convenience, as she resides in Jalgaon and finds it difficult to contest the proceedings in Beawar. The petitioner stated that from assessment year 2009-10 onwards, she has been filing her returns in Jalgaon. The revenue opposed the transfer, arguing that jurisdiction cannot be challenged after the expiry of 30 days from filing the return, as per Section 124(3) of the Act. They also contended that the petitioner's previous records are in Beawar, and transferring the case would necessitate transferring these records, which are to be maintained at Beawar for previous years.

What were the issues?

1. Whether the petitioner can challenge the jurisdiction of the Assessing Officer by seeking a transfer of her case to Jalgaon, Maharashtra, after the expiry of the period prescribed under Section 124(3) of the Income Tax Act, 1961? (Question of law) 2. Whether the convenience of the assessee is a sufficient ground to order the transfer of a case under Section 127 of the Income Tax Act, 1961, when the record for the relevant assessment year is maintained in the original jurisdiction? Assessee's arguments: The petitioner argued that she resides in Jalgaon, Maharashtra, and it would be difficult for her, as a female, to contest the case in Beawar. She also pointed out that she has been filing her returns in Jalgaon since assessment year 2009-10, and Section 127 of the Act provides for the transfer of cases for convenience. Revenue's arguments: The revenue contended that as per Section 124(3) of the Act, jurisdiction cannot be challenged after 30 days from the date of filing the return. They further argued that the petitioner filed her returns in Beawar previously, and her records for prior years are maintained there. Transferring the case would involve transferring these records, which is impractical as they are to be maintained in Beawar.

Which sections of the Income-tax Act were involved?

Section 148,Section 127,Section 124(3),Section 120,Section 142,Section 143,Section 139

AI-generated summary — verify with the full judgment below

Cause title — parties, addresses and appearances
S.B. CIVIL WRIT PETITION NO.9641/2012 (Smt. Beena Malpani Vs. Commissioner of Income Tax, Ajmer & Ors.) 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR S.B. CIVIL WRIT PETITION NO.9641/2012 Smt. Beena Malpani Vs. Commissioner of Income Tax, Ajmer & Ors. AND S.B. CIVIL WRIT PETITION NO.7581/2010 Smt. Beena Malpani Vs. Union of India & Ors. AND S.B. CIVIL WRIT PETITION NO.7576/2010 Smt. Beena Malpani Vs. Union of India & Ors. AND S.B. CIVIL WRIT PETITION NO.7583/2010 Smt. Beena Malpani Vs. Union of India & Ors. Date of Order : 24th April, 2014 HON'BLE MR. JUSTICE M.N.BHANDARI Mr.P.K.Kasliwal, for the petitioner/s. Mrs.Parinitoo Jain, for the respondent/s. By the Court: With the consent of learned counsel for both the parties, the writ petitions are heard finally, at this stage itself. By these writ petitions, the petitioner has made a challenge to the notice under Section 148 of the Income Tax Act, 1961 (for short “the Act of 1961”) and further prayer is to transfer the case to Jalgaon, in state of Maharashtra. It is precisely for the reason that petitioner is residing there and being S.B. CIVIL WRIT PETITION NO.9641/2012 (Smt. Beena Malpani Vs. Commissioner of Income Tax, Ajmer & Ors.) 2 a female, it would be difficult for her to contest the case at Beawar. A reference of Section 127 of the Act of 1961 has been given to show powers for transfer of the case. It is also stated that from the assessment year 2009-10 onwards, the petitioner is filing her return at Jalgaon, Maharashtra itself, though the case in hand is of assessment year prior to it but then it can be transferred keeping in mind the convenience of the petitioner to contest the notice effectively. Learned counsel for the respondent/s opposed the prayer aforesaid and submits that as per Section 124 (3) of the Act of 1961, jurisdiction cannot be challenged once voluntary return is filed under an office and if, at all, it is to be challenged, then it can be within a period of 30 days from the date of filing of return. The petitioner was filing her return throughout at Beawar and it is only from the year 2009-10 onwards, that she is filing her return at Jalgaon, Maharashtra. The previous record of the petitioner is lying at Beawar, thus the notice under Section 148 of the Act of 1961 has to be dealt with under the jurisdiction of office at Beawar. In view of above, transfer of case would result in transfer of record and would be returned because her record has to be maintained at Beawar for the previous years. S.B. CIVIL WRIT PETITION NO.9641/2012 (Smt. Beena Malpani Vs. Commissioner of Income Tax, Ajmer & Ors.) 3 I have considered the submissions made by learned counsel for the parties and scanned the matter carefully. It is case where after assessment of petitioner, a notice under Section 148 of the Act of 1961 was given. The only prayer of the petitioner is to transfer the case to Jalgaon, Maharashtra where she can contest the notice under Section 148 of the Act of 1961 served in the year 2012. I find that issue of jurisdiction, if any, cannot be raised after a period of 30 days from the date of filing of return. Section 124 of the Act of 1961 is quoted hereunder for ready reference : “124. (1) Where by virtue of any direction or order issued under sub-section (1) or sub- section (2) of Section 120, the Assessing Officer has been vested with jurisdiction over any area, within the limits of such area, he shall have jurisdiction— (a) in respect of any person carrying on a business or profession, if the place at which he carries on his business or profession is situate within the area, or where his business or profession is carried on in more places than one, if the principal place of his business or profession is situate within the area, and S.B. CIVIL WRIT PETITION NO.9641/2012 (Smt. Beena Malpani Vs. Commissioner of Income Tax, Ajmer & Ors.) 4 (b) in respect of any other person residing within the area. (2) Where a question arises under this section as to whether an Assessing Officer has jurisdiction to assess any person, the question shall be determined by the Director General or the Chief Commissioner or the Commissioner; or where the question is one relating to areas within the jurisdiction of different Directors General or Chief Commissioners or Commissioners, by the Directors General or Chief Commissioners or Commissioners concerned or, if they are not in agreement, by the Board or by such Director General or Chief Commissioner or Commissioner as the Board may, by notification in the Official Gazette, specify. (3) No person shall be entitled to call in question the jurisdiction of an Assessing Officer - (a) where he has made a return [under sub- section (1) of Section 115WD or] under sub- section (1) of Section 139, after the expiry of one month from the date on which he was served with a notice under sub-section (1) of Section 142 or[sub-section (2) of Section 115WE or] sub- section (2) of Section 143 or after the completion of the assessment, whichever is earlier; S.B. CIVIL WRIT PETITION NO.9641/2012 (Smt. Beena Malpani Vs. Commissioner of Income Tax, Ajmer & Ors.) 5 (b) where he has made no such return, after the expiry of the time allowed by the notice under [sub-section (2) of Section 115 WD sub-section (1) of Section 142 or under sub- section (1) of Section 115 WH or under Section 148 for the making of the return or by the notice under the first proviso to Section 115WF or under the first proviso to Section 144 ] to show cause why the assessment should not be completed to the best of the judgment of the Assessing Officer, whichever is earlier. (4) Subject to the provisions of sub-section (3), where an assessee calls in question the jurisdiction of an Assessing Officer, then the Assessing Officer shall, if not satisfied with the correctness of the claim, refer the matter for determination under sub-section (2) before the assessment is made. (5) Notwithstanding anything contained in

this section or in any direction or order issued under Section 120, every Assessing Officer shall have all the powers conferred by or under this Act on an Assessing Officer in respect of the income accruing or arising or received within the area, if any, over which he has been vested with juri iction by virtue of the directions or orders issued under sub-section (1) or sub-section ) of (Smt. Beena Malpani Vs. Commissioner of Income Tax, Ajmer & Ors.)

Section 120.]” A reference of Section 127 of the Act of 1961 has also been given to show powers of transfer. It is no doubt that aforesaid provision gives power to the Director General or Chief Commissioner or Commissioner of Income Tax to transfer the case but it is not mandatory and has to be for the reasons to be recorded. It cannot be only for the convenience of the assessee, inasmuch as, the record of the year concerned is maintained at Beawar and if the case is transferred, then it would result in transfer of the record for that relevant year. The record is otherwise to be maintained at Beawar only. The petitioner would contest the matter through the Advocate, thus question of inconvenience is not large so as to direct the respondents to transfer the case at Jalgaon, Maharashtra. In the light of the aforesaid, I do not find any merit in the writ petitions, hence, the same are dismissed. It dismisses the stay applications as well, however, the application/s for vacation of stay order gets allowed automatically with the rejection of writ petition/s. (M.N. BHANDARI), J. S/No.25 Preety, P.A.

(Smt. Beena Malpani Vs. Commissioner of Income Tax, Ajmer & Ors.)

All corrections made in the judgment/order have been incorporated in the judgment/order being emailed. Preety Asopa P.A.

More judgments on Section 148

All 35,022 judgments and leading authorities on Section 148 →

Latest GST High Court judgments

Search GST case law →