AMRISHBHAI HASMUKHLAL PARIKH (HUF) vs. DEPUTY COMMISSIONER OF INCOME TAX CIRCLE 2(1)(1) AHMEDABAD

C/SCA/11920/2021 ORDER DATED: 12/10/2021 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 11920 of 2021 ========================================= AMRISHBHAI HASMUKHLAL PARIKH (HUF) Versus DEPUTY COMMISSIONER OF INCOME TAX CIRCLE 2(1)(1) AHMEDABAD ========================================= Appearance: MR B S SOPARKAR(6851) for the Petitioner(s) No. 1 MRS MAUNA M BHATT(174) for the Respondent(s) No. 1 ========================================= CORAM: HONOURABLE MS. JUSTICE SONIA GOKANI and HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

Date : 12/10/2021

ORAL ORDER (PER : HONOURABLE MS. JUSTICE SONIA GOKANI) 1. This petition is preferred seeking the following reliefs : (a) quash and set aside the impugned notice at Annexure-A to this petition; (b) pending the admission, hearing and final disposal of this petition, to stay implementation and operation of the notice at Annexure-A to this petition and stay further proceedings for assessment for A.Y. 2014-15; (c) quash and set aside the impugned order at Annexure-E to this petition; (d) any other and further relief deemed just and proper be granted in the interest of justice; (e) to provide for the cost of this petition. 2. After this Court issued the notice on 24th August, 2021, the other side appeared and has filed affidavit-in-reply and thereafter, the Court has extensively heard both the sides. The Court has also Page 1 of 4

C/SCA/11920/2021 ORDER DATED: 12/10/2021 called for record from the Assistant Commissioner of Income Tax, Circle-2, which also includes the investigation report. On completion of extensive hearing, which included the papers of investigation in relation to the issue of Client Code Modification (CCM). Mr. B.S. Soparkar, learned advocate on instructions has made a request to withdraw this petition. 3. Mr. Bhatt, learned Senior Standing Counsel has objected to the said withdrawal as according to him after a marathon exercise of pleadings & detailed submissions on both the sides with so much of investment of the time of the Court, when the Court is not inclined to interfere with the proceedings of reopening u/s. 148 of the I.T. Act, decision of Client Code Modification is required on merits opining on the validity of the reopening of the assessment. 4. Relying on the decision of the Apex Court rendered in case of Sarguja Transport Service Vs. State Transport Appellate Tribunal, M.P. Gwalior & others, reported in (1987) 1 SCC page 5, Mr.Soparkar, learned advocate has urged that he be permitted this withdrawal as he is not seeking the permission to once again approach this Court under Article 226 of the Constitution of India. He added further that it would amount to bargain his challenge of reopening under the I.T. Act in connection with the notice under challenge. 6. Mr. Bhatt, learned Senior Standing Counsel has relied on para-9 of the said decision to urge that whether to permit with reasons or without the reasons is the discretion of the Court, which needs to be exercised even if it permits the withdrawal without any request for once again approaching this Court. Page 2 of 4

C/SCA/11920/2021 ORDER DATED: 12/10/2021 Apt would be to reproduce para-9 of the said decision of Sarguja Transport Service Vs. State Transport Appellate Tribunal, M.P. Gwalior & others, reported in (1987) 1 SCC page 5. “9. The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Article 226 of the Constitution of India without the permission to institute afresh petition can file a fresh writ petition in the High Court under that Article. On this point the decision in Daryao's case (supra) is of no assistance. But we are of the view that the principle underlying rule 1 of Order XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench- hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again. While the withdrawal of a writ petition filed in a High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution of India since such withdraw- al does not amount to res judicata, the remedy under Article 226 of the Constitution of India should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission. In the instant case the High Court was fight in holding that a fresh writ petition was not maintainable before it in respect of the same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh petition. We, however. make it clear that whatever we have stated in this order may not be considered as being applicable to a writ petition involving the personal liberty of an individual in which the petition- er prays for the issue of a writ in the nature of habeas corpus or seeks to enforce the fundamental fight guaranteed under Article 21 of the Constitution since such a case stands on a different footing altogether. We however leave this question open.” 7. Noticing that the permission for withdrawal can come on the part of the assessee, it is surely the discretion of the Court, whether to permit the same with or without availing the reasons. While exercising such discretion in the instant case, the earnest request on the part of the assessee needs to be consider to allow the withdrawal without any further challenge or permission for Page 3 of 4

C/SCA/11920/2021 ORDER DATED: 12/10/2021 once again approaching this Court under Article 226 of the Constitution of India concerning the reopening. 8. The matter involves serious questions concerning the CCM and alleged serious manoeuvring of adjustment to evade, as could be made-out in the note of investigation. We deem it appropriate not to opine on the subject and even without touching the merit of the matter, on the issue of the reopening if the Court needs to reject this petition, there are bound to be certain findings & observations, which may in long run prejudice the petitioner and therefore, without giving any reasons, the petition is permitted to be withdrawn, acceding to the request of petitioner. 9. Notice is discharged. (SONIA GOKANI, J.) (RAJENDRA M. SAREEN, J.) AMAR RATHOD... Page 4 of 4