Neeraj Mandloi vs. Deputy Commissioner Of Income Tax

HIGH COURT OF MADHYA PRADESH AT JABALPUR

Writ Petition No. : 3863 OF 2015 Neeraj Mandloi - V/s - Deputy Commissioner of Income Tax and Others & Writ Petition No. : 4374 OF 2015 Smt. Uma Shashi Sharma - V/s - Deputy Commissioner of Income Tax and Others

Present :

Hon’ble Shri Justice Rajendra Menon, Acting Chief Justice; and,

Hon’ble Smt. Justice Anjuli Palo. ---------------------------------------------------------------------------------------- Shri Mukesh Agrawal, learned counsel for the petitioners.

Shri Sanjay Lal, learned counsel for the respondents. ---------------------------------------------------------------------------------------- O R D E R (3 –11–2016)

As the common question of law and facts are involved in both these writ petitions, they are being disposed of by this common order.

In W.P. No.3863/2015, proceedings initiated under Section 148 of the Income Tax Act, 1961 for reopening assessment for the year 2009-2010 is challenged and it is argued that in rejecting the objection raised an error has been committed by the departmental authorities. Similarly in W.P. No.4374/2015 reopening and the order 2

of assessment passed after holding proceedings under Section 148 for the assessment year 2009-2010 is challenged in both these cases.

It is the objection of the petitioners that these are not cases where the assessment can be reopened under Sect5ion 148, but they are cases where the assessment can be reopened or proceedings are to be held under Section 153-C, as the assessments are proposed to be reopened on the basis of search and seizure conducted in the premises of third person and when action is undertaken on the basis of information received and proceeding held against third person, then provisions of section 153-C are attracted.

Even though various grounds are raised and they are rebutted by counsel appearing for the revenue and Shri Lal has also filed a written submission to say that Section 148 will apply and not Section 153-C, we find that in both the cases the moot question involved is as to whether reopening of assessment under Section 148 is permissible or proceedings are to be held under Section 153-C. We find that in both the cases detailed objections in this regard have been raised by the petitioners and they have been given specific grounds to say as to how the provisions of Section 148 are not applicable and for what reasons the provisions of section 153-C will apply. In the objection filed by Neeraj Mandloi, petitioner in W.P. No.3863/2015, vide annexure P-15 a detailed legal objection in this regard is raised from page 2 onwards vide Paragraph 1(a), 1(b), 1(c), 1(d) and certain judgments are also brought to the notice in the representation in support thereof. However, while rejecting the objection vide annexure P-16 in para 3.1 the objections are not adverted to and it is only stated that similar objections have only been rejected on similar action of such objection as contained in Annexure P-14 dated 4.3.2015 wherein this objection has not at all considered. Similar is the position in W.P. No.4374/2015 wherein only objection raised in detail is not at all 3

adverted to in accordance with law and the assessment completed without deciding this objection.

In our considered view, the question as to whether the assessment could be reopened in proceeding under Section 148 or on the facts and circumstances of the case the proceedings should be reopened under Section 153-C, is the question which should have been decided by the authorities concerned by a specific order and the authorities having failed to decide this crucial legal question, it is a fit case where both these petitions should be allowed, the impugned orders rejecting objection quashed and matter remanded back to the competent authority to considered and decide these objections afresh in accordance to law and proceed in the matter after hearing all concern.

Accordingly, we allow both these petitions, quash the impugned orders in both these petitions and remand the matter back to the competent authority to decide the objections afresh in accordance with law by a speaking order.

With the aforesaid, both the petitions are disposed of.

(RAJENDRA MENON) (Smt. ANJULI PALO) ACTING CHIEF JUSTICE

JUDGE ss