Kavita Panjwani vs. Asstt. Commissioner Of Income Tax

--- 1 --- HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE D.B.: HON'BLE MR. S. C. SHARMA AND HON'BLE MR. VIRENDER SINGH, JJ WRIT PETITION No. 3672 / 2017 KAVITA PANJWANI Vs. ASSTT. COMMISSIONER OF INCOME TAX, INDORE AND TWO OTHERS WRIT PETITION No. 3656 / 2017 CHANDNI PANJWANI Vs. ASSTT. COMMISSIONER OF INCOME TAX, INDORE AND TWO OTHERS WRIT PETITION No. 3674 / 2017 KAVITA PANJWANI Vs. ASSTT. COMMISSIONER OF INCOME TAX, INDORE AND TWO OTHERS A N D WRIT PETITION No. 3678 / 2017 SUNITA PANJWANI Vs. ASSTT. COMMISSIONER OF INCOME TAX, INDORE AND TWO OTHERS * * * * * --- 2 --- O R D E R ( ___/07/2017) PER : S. C. SHARMA, J :- Regard being had to the similitude in the controversy involved in the present cases, the writ petitions were analogously heard and by a common order, they are being disposed of by this Court. Facts of Writ Petition No. 3672/2017 are narrated hereunder. The petitioner before this Court has filed this present writ petition being aggrieved by order dated 28/2/2013 read with order dated 7/11/2013 passed by the Income Tax Appellate Tribunal, Indore. In the relief clause the petitioner has prayed for the following reliefs : To quash the order dated 7/11/2016 passed in M.A.No. 07/Ind/2015 by the Tribunal and to remand the matter back to the Tribunal for deciding ground No.1 relating to validity of assessment framed u/S. 153A. Facts of the case reveal that the petitioner – assessee is an individual and a search and seizure operation were carried out u/S. 132 of the Income Tax Act, 1961 on --- 3 --- 14/12/2007. That notices u/S. 153C of the Income Tax Act, 1961 dt. 12/9/2008 was issued to the petitioner and the petitioner filed reply to the Notice vide letter dated 12/11/2008 objecting to the Notice and contending, inter-alia, that proceeding u/S. 153C deserves to be dropped since no incriminating material was found in possession of the petitioner during search operation. Thereafter returns were filed under protest u/S. 153C by the petitioner on 31/3/2009 and the case of the petitioner was selected for scrutiny and notice u/S. 142(1) and 143(2) with a Questionnaire were issued to the petitioner on 15/7/2009. The Assessing Officer on 29/12/2009 in exercise of powers conferred u/S. 143(3) read with Sec. 153-C assessed the petitioner and made an addition in respect of sale of shares which was claimed as Long Term Capital Gain. The petitioner being aggrieved by the order passed by the Assessing Officer preferred an appeal on 1/1/2010. The appeal was dismissed by order dated 31/5/2011. Thereafter --- 4 --- being aggrieved by the order passed by the Commissioner, Income Tax (Appeals), the petitioner approached the Income Tax Appellate Tribunal, on 1/8/2011 and the Income Tax Appellate Tribunal has decided the appeal of the petitioner on 28/2/2013. Thereafter in the year 2016 the petitioner has preferred an application for Rectification u/S. 254(2) of the Income Tax Act, 1961 and the same has been dismissed by order dated 7/11/2016. The contention of the petitioner is that the Income Tax Appellate Tribunal has not taken into account Sec. 153 of the Income Tax Act, 1961 while deciding appeal ie., while passing order dated 28/2/2013 and, therefore, the rectification application in the year 2016 was very much maintainable. The petitioner has challenged the order passed by the Income Tax Appellate Tribunal, by stating that it is a non-speaking, perverse and illegal order and has been passed without jurisdiction. The second ground raised by the petitioner is that the impugned order dt. 28/2/2013 read with order dt. 7/11/2016 is illegal and without jurisdiction as the first and foremost preliminary --- 5 --- ground relating to jurisdiction of assessment framed u/S. 153C has not been decided. It has been contended that the Income Tax Appellate Tribunal has not at all considered the aforesaid ground and the Written Statement filed by the petitioner. It has been further submitted that the Income Tax Appellate Tribunal, has erred in law in ignoring the specific ground raised by the petitioner regarding jurisdiction of the Assessing Officer u/S. 153A of the Income Tax Act, 1961. Lastly it has been contended that the citations relied upon by the learned counsel for the petitioner have not been considered at all by the Income Tax Appellate Tribunal, simply stating that they are not relevant. Besides these, a ground has also been taken that the Tribunal has not acted judiciously since it has not considered the case of the petitioner with due care and material facts and evidence in favour of and against the assessee and, therefore, the order deserves to be quashed. A reply has been filed in the matter and the Income Tax Department has opposed admission of the present Writ --- 6 --- Petition. Their contention is that the order on appeal was passed by the Income Tax Appellate Tribunal, on 28/2/2013 which was not challenged u/S. 260A of the Income Tax Act, 1961 before this Court and only because the order passed on 28/2/2013 was not challenged, rectification application was filed in the year 2016 only with a view and object to overcome delay and laches and, therefore, a prayer has been made to remand the matter back to the Income Tax Appellate Tribunal, so that the appeal can be filed afresh against the order passed by the Income Tax Appellate Tribunal, before this Court. It has also been stated by the Department that the assessee has raised objection before this Court stating that the Income Tax Appellate Tribunal has not decided the ground No.1 relating to validity of assessment framed u/S. 153. The respondents have further stated that the Income Tax Appellate Tribunal, has clearly discussed the issue in the appeal of Chandni Panjwani in its consolidated order dated 31/5/2011 (pg. 76 to pg. 338 of the petition). It has also been stated that on the rectification --- 7 --- application which was filed in the year 2016, Income Tax Appellate Tribunal, has discussed the issue in respect of ground No.1 ie., para 8 (pg. 337 of the Writ Petition). It has been stated that the Income Tax Appellate Tribunal has discussed all the application of the assessee by holding that the issue specifically relating to assessment framed u/S. 153A/C have been widely discussed in the Tribunal's order dated 28/2/2013. The respondents have prayed for dismissal of the Writ Petition. Heard learned counsel for the parties at length and perused the record. The undisputed facts of the case reveal that an order was passed by the Income Tax Appellate Tribunal on an appeal preferred by the petitioner on 28/2/2013. Nothing prevented the petitioner to file an application u/S. 254(2) of the Income Tax Act, 1961 in the year 2013. Another important aspect of the case is that the Misc. Application was preferred only in the year 2016. Learned counsel for the petitioner has placed reliance --- 8 --- upon the judgment delivered in the I.T.A. No. 274/2010 by the Delhi High Court and his contention is that an order rejecting application u/S. 254 of the Act is not appealable and, therefore, the present Writ Petition is not maintainable. This Court has carefully gone through the judgment delivered by the Delhi High Court, but in the present case, facts are distinguishable. The original order was passed on 28/2/2013 by the Tribunal and the Tribunal in its consolidated order dt. 28/2/2013 (para. 76 pg. 338 of the Writ Petition) has held as under : 76. We have considered the rival submissions and have gone through the orders of the authorities below and found from record that the assessee has challenged the validity of assessment framed u/S. 153C in the case of Kavita Panjwani, Suneeta Panjwani. From the record, we found that incriminating material was found during course of search, therefore, framing of assessment u/S. 153C was justified. Accordingly, we confirm the detailed findings of the CIT(A) with regard to validity of assessment framed u/S. 153C. Not only this, on the rectification application which was filed in the year 2016 the Income Tax Appellate Tribunal, in paragraph 8 has held as under : 8. From the above finding of the Tribunal read with paras 4, 74 & 76 makes it clear that the Tribunal has considered legality of framing of assessment u/S. 153C and decided the same by dismissing the appeals of the assessees on this issue. As the Tribunal has clearly held that the findings of the ld. CIT(A) were confirmed with regard to validity of assessment framed u/S. --- 9 --- 153C. Therefore, there is no apparent mistake in the order of the Tribunal. If the contention of ld. Authorised Representative of the assessee is considered, then it tantamount to revising the decision which stands already decided and, hence, the same is not permissible u/S. 254(2) of the Income Tax Act, 1961. The claim of ld. Authorised Representative of the assessee that the Tribunal has not discussed the scope of addition made in the assessment framed u/S. 153C of the Act amounts to review of the appeal decided by the Tribunal. Therefore, the same is not allowed. Accordingly, the Misc. applications filed by the assessees in all the cases are dismissed. The aforesaid facts makes it very clear that the Income Tax Appellate Tribunal, has disposed of Misc. Application of the assessee by holding that all the issues specifically relating to validity of assessment framed u/S. 153A/C have been widely discussed in the Tribunal's order dated 28/2/2013. From the foregoing it, therefore, inevitably follows that no case for interference in exercise of writ jurisdiction is made out in the matter. Accordingly, admission is declined. (S. C. SHARMA) J U D G E (VIRENDER SINGH) J U D G E KR