Ramshree Education Of Technology Samiti vs. Principal Commissioner Of Income Tax

1 THE HIGH COURT OF MADHYA PRADESH W.P.No.28882/2018 (Ramshree Education of Technology Samiti, Gwalior Vs. Principal Commissioner of Income Tax & others) Gwalior, Dated:-7.8.2019 Shri Pawan Dwivedi and Shri Kunal Suryavanshi, learned counsel for the petitioner. Shri D.P.S. Bhadauriya, learned counsel for the respondents. (1) This petition under Article 226/227 of the Constitution is directed against the order dated 26.9.2018 passed by the Principal Commissioner of Income Tax, Gwalior in exercise of the revisional power under section 264 of Income Tax Act, 1961, is an example of a mechanical and casual manner the Revisional Authority deals with the Revision under section 264 of 1961 Act. (2) The revision was directed against the assessment order passed by ACIT, Circle 1, Gwalior on 22/12/2016 in respect of the accounting year 2009-10; and the demand order dated 26/12/2016 whereby an amount of Rs.40,77,690/- was directed to be deposited by the petitioner -assessee bearing PAN No. AAFFR4110D and demand notice dated 20/02/2017 under Section 221 (1) of the Income Tax Act, 1961. (3) The said order i.e. order dated 22.12.2016 was earlier subjected to challenge in Revision which was dismissed on 19.3.2018. In Writ Petition No.9180/2018 taking note of the fact that the Revisional Authority has not addressed the issue as regard to non 2 THE HIGH COURT OF MADHYA PRADESH W.P.No.28882/2018 (Ramshree Education of Technology Samiti, Gwalior Vs. Principal Commissioner of Income Tax & others) service of notice under sections 148, 142 (1) and 144 of 1961 Act, the order was set aside on 20.8.2018 and the matter was relegated to the Revisional Authority with the direction: “Though an exception is taken by the petitioner against the affidavit filed by the Revisional Authority justifying the order, which as per the petitioner is impermissible, as the order under challenge has been passed by the Authority concerned in her capacity of quasi-judicial Authority. Be that as it may. Learned counsel appearing for respondents fairly submits that the petitioner/assessee had raised a ground regarding non-service of notice under Sections 148, 142(1) and 144 of 1961 Act, which is not being considered, the Revision has been dismissed on merit. In view of the submissions made on behalf of the respondents, we are of the considered opinion that the matter deserves to be remitted to the Revisional Authority for fresh consideration of the Revision filed by the petitioner dwelling on all the issues raised therein. The Revision be decided expeditiously, however, not later than 30 days from the date of communication of this order. Petition is finally disposed of in above terms. No costs.” 3 THE HIGH COURT OF MADHYA PRADESH W.P.No.28882/2018 (Ramshree Education of Technology Samiti, Gwalior Vs. Principal Commissioner of Income Tax & others) (4) The Revisional Authority on remand while dwelling on the issue has cryptically dwelt as under: “(8) The assessee has raised objection regarding service of notice u/s 148 of the I.T. Act, 1961 to him in writ petition filed before the Honb'le High Court of Madhya Pradesh. The assesee's contention in this regard is not acceptable in lights of the decision of the Hon'ble High Court of Delhi in the case of I.M. Construction Pvt. Ltd. Vs. Commissioner of Income Tax [(2012) 24 taxmann.com 162 (Delhi)/(2012) 210 taxman 83 (Delhi) (MAG.) wherein it has been held that states that whether since assessment proceedings were still pending and had not culminated in passing of any order and in meanwhile, assessee had come to know about said assessment proceeding, assessee could be treated as having been served with notice u/s 148 which was earlier issued at address mentioned in return. The facts of this case were that “the contention of the petitioner company is that they have not been served with the notice u/s 148 of the Act and 4 THE HIGH COURT OF MADHYA PRADESH W.P.No.28882/2018 (Ramshree Education of Technology Samiti, Gwalior Vs. Principal Commissioner of Income Tax & others) therefore, the proceedings pursuant to the notice u/s 142 (1) are void ab initio. The petitioner submits that the notice u/s 148 is required to be served in accordance with section 282 of the Act and in case of non-service of notice, entire proceedings are of no consequence.” (5) Though true it is that the exercise of power under section 264 is confined to; (i) to have exercised a jurisdiction not vested in it by law; or (ii) to have failed to exercise a jurisdiction so vested; or (iii) to have acted in the exercise of its jurisdiction illegally or with material irregularity. (6) The Revisional Authority is however expected to dwell on the issue by adverting to merit. (7) Apparently, the impugned order does not deal with the issue in right perspective and in consonance with the stipulation contained under section 264 of 1961 Act. (8) In view whereof, while setting aside the impugned order dated 26.9.2018, the matter is once again relegated to the Revisional Authority for the decision afresh in accordance with law. (9) Let the Revision be decided expeditiously, however, not later than 30 days from the date of communication of this order. (10) It is made clear that this Court has not expressed any opinion 5 THE HIGH COURT OF MADHYA PRADESH W.P.No.28882/2018 (Ramshree Education of Technology Samiti, Gwalior Vs. Principal Commissioner of Income Tax & others) on merit. (11) Petition is finally disposed of in above terms. No costs.

(Sanjay Yadav) (Vivek Agarwal) Judge Judge Pawar/- ASHISH PAWAR 2019.08.16 10:58:12 +05'30'