COMMISSIONER OF INCOME TAX-I vs. M/S PATHIK DEVELOPERS

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SCA/18433/2014HC GujaratGJHC24020572201427 July 2015Author: HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE A.J.DESAI,HONOURABLE MR. JUSTICE A.G.URAIZEE3 pages

AI SummaryDismissed

What did the High Court hold?

The High Court held that the writ petition filed by the Revenue was not maintainable. The Court relied on the Supreme Court's decision in Chem Amit v. Assistant Commissioner of Income-Tax, which established that in such circumstances, the only remedy available to challenge the ITAT's order is to file an appeal under Section 260A of the Income Tax Act, 1961. The Court also referred to the Gujarat High Court's decision in Saroj Ceramics Industries v. Income Tax Officer, which supported this view. Consequently, the writ petition was dismissed as not maintainable, with the Court clarifying that it had not adjudicated on the merits of the case. The Petitioner was granted the liberty to file an appeal under Section 260A of the Act. The rule was discharged.

What were the facts?

The Commissioner of Income Tax-I (Petitioner/Revenue) filed a Special Civil Application challenging a judgment and order dated June 27, 2014, passed by the Income Tax Appellate Tribunal (ITAT), Ahmedabad. The ITAT had accepted a Miscellaneous Application filed by the Assessee (M/s Pathik Developers/Respondent) for review. This review application sought to revisit an earlier order passed by the ITAT in favour of the Revenue. The Assessee, in its reply, contended that the writ petition was not maintainable and that the Revenue's only recourse was to file an appeal under Section 260A of the Income Tax Act, 1961, citing the Gujarat High Court's decision in Saroj Ceramics Industries v. Income Tax Officer. The High Court also considered a Supreme Court decision in Chem Amit v. Assistant Commissioner of Income-Tax.

What were the issues?

1. Whether a writ petition under Article 226 of the Constitution of India is maintainable for challenging an order passed by the ITAT accepting a review application, when the remedy of appeal under Section 260A of the Income Tax Act, 1961 is available. Assessee's Contention: The Assessee argued that the writ petition was not maintainable, citing the Gujarat High Court's decision in Saroj Ceramics Industries v. Income Tax Officer. They contended that the proper remedy for the Revenue was to file an appeal under Section 260A of the Act. Revenue's Contention: The judgment does not explicitly record the Revenue's arguments against the maintainability of the writ petition. However, their action of filing the writ petition implies a belief in its maintainability.

Which sections of the Income-tax Act were involved?

Section 260A

AI-generated summary — verify with the full judgment below

Cause title — parties, addresses and appearances

C/SCA/18433/2014 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 18433 of 2014 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE A.J.DESAI and HONOURABLE MR.JUSTICE A.G.URAIZEE ========================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? ========================================================== COMMISSIONER OF INCOME TAX-I....Petitioner(s) Versus M/S PATHIK DEVELOPERS....Respondent(s) ========================================================== Appearance: MR SUDHIR M MEHTA, ADVOCATE for the Petitioner(s) No. 1 MR B S SOPARKAR, ADVOCATE for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MR.JUSTICE A.J.DESAI and HONOURABLE MR.JUSTICE A.G.URAIZEE Date : 27/07/2015

ORAL JUDGMENT C/SCA/18433/2014 JUDGMENT (PER : HONOURABLE MR.JUSTICE A.J.DESAI) 1 By way of present petition filed under Article 226 of the Constitution of India, the petitioner has challenged the judgment and order dated 27.06.2014 passed by the Income Tax Appellate Tribunal “A” Bench, Ahmedabad, by which, an application filed by the Assessee being Miscellaneous Application No.175/AHD/2013 for review has been accepted and the order which was passed by the Tribunal itself in favour of the Revenue was referred. 2 By filing an affidavitinreply, the respondent has brought to notice of this Court in the case of Saroj Ceramics Industries v. Income Tax Officer [2014] 42 taxmann.com 372 (Gujarat) stating that the writ petition would not be maintainable and the Revenue can challenge the decision of the Tribunal in review application only by way of filing an appeal under Section 260A of the Income Tax Act, 1961 (for short, ‘the Act). 3 We have heard the learned advocates for the parties and perused the aforesaid decision. We have also considered a decision of the Honourable Supreme Court in the case of Chem Amit v. Assistant Commissioner of IncomeTax reported in [2005] ITR 397, by which, a Division Bench of the Honourable Supreme Court held that in such circumstances, the only remedy would be filing an appeal under Section C/SCA/18433/2014 JUDGMENT 260A of the Act. 4 The present petition is dismissed as not maintainable. However, it would be open for the petitioner to file an appeal under Section 260A of the Ac. It is hereby made clear that this Court has not entered into the merit of the case. Rule is discharged. (A.J.DESAI, J.) (A.G.URAIZEE,J) chandresh

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