SMT. SANJIVANI SURESH THANEKAR vs. THE COMMISSIONER, INCOME TAX DEPARTMENT WARD-3,THANE

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AO/107/2019HC BombayHCBM01000583201928 January 2019Author: HON'BLE SMT. JUSTICE DR. SHALINI PHANSALKAR-JOSHI3 pages
AI SummaryDismissed

What did the High Court hold?

The High Court held that the Civil Court rightly rejected the ad-interim relief and had no jurisdiction to try and entertain the suit. This was based on the revenue's contention that Section 293 of the Income Tax Act, 1961, clearly bars suits in Civil Courts to set aside or modify any proceedings or orders made under the Act. As the suit challenged assessment proceedings under Section 147, the bar under Section 293 was applicable. Regarding the prayer to restrain Respondent Nos. 3 and 4 from construction activities, the Court noted that such a prayer did not appear to have been made before the trial court, and even if it had been, no ad-interim relief could be granted without making out a prima-facie case. Consequently, the Appeal was dismissed as being without merit. The Civil Application was disposed of as nothing survived in view of the dismissal of the Appeal.

What were the facts?

The appellants, Sanjivani Suresh Thanekar & Ors., filed an Appeal from Order challenging an order dated 25/12/2018 passed by the City Civil Court, Mumbai. This order rejected the ad-interim relief sought in a Draft Notice of Motion within S.C. Suit (Stamp) No.16996 of 2018. The Notice of Motion aimed to restrain Respondent Nos. 1 and 2 (The Commissioner, Income Tax Department, Ward-3, Thane & Ors.) from proceeding with assessment proceedings under Section 147 of the Income Tax Act, 1961, for Annual Year 2011-12, pursuant to a notice dated 05/12/2018. The suit was filed by the appellants. Respondent Nos. 3 and 4 were also parties to the suit.

What were the issues?

1. Whether the Civil Court has jurisdiction to entertain a suit challenging assessment proceedings initiated under Section 147 of the Income Tax Act, 1961, in light of the bar under Section 293 of the Act? (Question of law) Assessee's Contention: The appellants sought to restrain the Income Tax Department from taking action in assessment proceedings. The specific arguments made by the appellants' counsel before the High Court are not fully detailed, but they were seeking ad-interim relief. Revenue's Contention: The revenue argued that Section 293 of the Income Tax Act, 1961, bars any suit in a Civil Court to set aside or modify any proceeding taken or order made under the Act. They contended that since the suit challenged assessment proceedings under Section 147, the Civil Court lacked jurisdiction. The revenue also noted that a prayer to restrain Respondent Nos. 3 and 4 from construction activities was not made before the trial court.

Which sections of the Income-tax Act were involved?

Section 147,Section 293

AI-generated summary — verify with the full judgment below

osk                                                                                                                                    15­aost­275­2019.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER (ST.) NO. 275 OF 2019 WITH CIVIL APPLICATION (ST.) NO. 276 OF 2019 Sanjivani Suresh Thanekar & Ors. … Appellants V/s. The Commissioner, Income Tax Department, Ward-3, Thane & Ors. … Respondents • Mr.Anil S. Kharatmol for the Appellant. • Mr.Sham V. Walve for Respondent Nos.1 and 2. • Mr.Arif Bookwala a/w. Mr.Deepak Chitnis, Ms.Sonali Dalvi, Ms.Jinal Rathi, Ms.Aditi Yadav, , Mr.Mangesh Parte i/b. Deepak Chitnis Chiparikar for Respondent No.

3.

CORAM : DR.SHALINI PHANSALKAR-JOSHI, J. DATE : 28th JANUARY, 2019. P.C. : 1] Heard learned counsel for both the parties. 2] This Appeal takes an exception to the order dated 25/12/2018 passed by the City Civil Court, Mumbai, thereby rejecting the ad-interim relief in the Draft Notice of Motion in S.C. Suit (Stamp) No.16996 of 2018. 1/3

osk                                                                                                                                    15­aost­275­2019.odt 3] The said Notice of Motion was taken out by the Appellant herein restraining Respondent Nos.1 and 2 from taking any action in pursuance of the notice dated 05/12/2018 issued in respect of assessment proceedings under Section 147 of the Income Tax Act, 1961, for Annual Year 2011-12. 4] Learned counsel for the Respondent brings to the notice of this Court Section 293 of the Income Tax Act, 1961 which clearly provides that no suit shall be brought in any Civil court to set-aside or modify any proceeding taken or order made under this Act; and no prosecution, suit or proceeding shall lie against the Government or any Officer of the Government for anything in good faith done or intended to be done under this Act. As the suit is filed challenging the assessment proceedings under Section 147 of the Income Tax Act, the bar under Section 293 of the Income Tax Act clearly comes in the picture and therefore, the trial Court has rightly held that it has no jurisdiction to try and entertain the suit. 5] Learned counsel for the Appellant then submits that Respondent Nos.3 and 4 should be restrained from carrying out construction activities in the plot of the Appellant. However, such 2/3

osk                                                                                                                                    15­aost­275­2019.odt prayer does not appear to have been made before the trial Court, as the impugned order passed by the trial Court does not refer to any such relief advanced by learned counsel for the Appellant. Otherwise also without making out prima-facie case, no such ad-interim relief can be granted. Hence, the Appeal being without merit stands dismissed. 6] In view of dismissal of the Appeal, nothing survives in the Civil Application and hence, stands disposed of. [DR.SHALINI PHANSALKAR-JOSHI, J.] 3/3

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