M/S RAMAKANT SINGH vs. COMMISSIONER OF INCOME TAXCEN

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CWJC/2900/2010HC PatnaBRHC01052775201018 February 20103 pages
AI SummaryRemanded

What did the High Court hold?

The High Court noted that the case was covered by a previous inter-parte order in a similar writ petition. The Tribunal, in its order, had observed that it was not possible to decide the assessee's plea regarding the nature and extent of inquiries conducted by the Assessing Officer (AO) because the assessee had not placed a copy of the questionnaire dated November 17, 2006, issued by the AO, nor a copy of the assessee's reply dated September 18, 2006. Consequently, the Tribunal set aside the combined order of the CIT and remanded the issue back to the CIT with directions to decide the show-cause notice afresh after allowing the assessee a proper opportunity of being heard. The High Court, in view of this, was not inclined to interfere at that stage and directed the Commissioner to dispose of the matter within three months. The writ petition was disposed of in terms of the Tribunal's directions.

What were the facts?

The petitioner, M/s Ramakant Singh, a partnership firm, filed a writ petition challenging a notice dated September 19, 2007, issued under Section 263 of the Income Tax Act, 1961, by the Commissioner of Income Tax (Central), Patna. The petitioner argued that the notice was flawed as the Commissioner had not recorded that the assessing officer's order was erroneous and prejudicial to the revenue. The revenue submitted that the assessee had appeared before the Commissioner, filed a show-cause reply, and a final order was passed. Against this, the assessee appealed to the Income Tax Tribunal, which remanded the matter back to the Commissioner.

What were the issues?

1. Whether the notice issued under Section 263 of the Income Tax Act, 1961, by the Commissioner of Income Tax (Central) was valid, considering the alleged failure to record that the assessing officer's order was erroneous and prejudicial to the interest of the revenue. Assessee's Contention: The notice to show cause is susceptible to challenge as the Commissioner failed to record the prerequisite conditions for issuing such a notice under Section 263, namely, that the order passed by the assessing officer was erroneous and prejudicial to the interest of the revenue. Revenue's Contention: The assessee appeared before the Commissioner, filed a show-cause reply, and a final order was passed. The assessee then preferred an appeal before the Income Tax Tribunal, which remanded the matter back to the Commissioner. This procedural history is not disputed by the assessee.

Which sections of the Income-tax Act were involved?

Section 263

AI-generated summary — verify with the full judgment below

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2900 of 2010

1.

M/s Ramakant Singh, a partnership firm having its place of business at 101, Lotus Apartment, New Patliputra Colony, Patna 800013 Through one of its partners Sri Ramakant Singh, S/o Late Ram Khelawan Singh, residing at 101, Lotus Apartment, New Patliputra Colony, Patna 800 013 P.O. New Patliputra Colony, P.S. Patliputra in the Town and District Of Patna. --------- Petitioner Versus 1. Commissioner of Income Tax (Central), Patna. 2. Assistant Commissioner of Income Tax Central Circle 1, Patna . 3. Union of India through the Secretary, Deptt. of Revenue, Ministry of Finance, Govt. of India, Central Secretariat, North Block, New Delhi-110 001. --------- Respondents -----------

18.02.2010 It is fairly agreed at the Bar that this case is squarely covered by an inter-parte order dated 16.2.2010 in C.W.J.C. No. 2647 of 2010, which reads as follows:-

“By this writ petition the petitioner has prayed for issue of a writ of certiorari for quashment of the notice dated 19.9.2007 issued under Section 263 of the Income tax Act, 1961 (for brevity „the Act‟) by the Commissioner of Income Tax (Central) on the ground that the notice to show cause is sensitively susceptible inasmuch as the Commissioner has not recorded that the order passed by the assessing officer is erroneous as well as prejudicial to the interest of revenue.

Ordinarily, we would have dwelled upon the said issue but Mr. Harshwardhan Prasad, learned senior standing counsel for Revenue has submitted

that the assessee petitioner had appeared before the Commissioner and participated by filing a show-case and the Commissioner had passed a final order under Section 263 of the Act and against the said order the assessee had preferred an appeal before the Income tax Tribunal (for short „the Tribunal‟) which has remanded the matter to the Commissioner of Income Tax (Central). This fact is not disputed by Mr. Jain, learned counsel for the assessee-petitioner.

In this context, we may reproduce paragraph 10 of the order passed by the Tribunal:-

“10. So far as, present case is concerned, we are of the opinion that assessee having not placed a copy of questionnaire dated 17.11.2006 issued by the A.O. and also a copy of assessee‟s reply dated 18.09.2006, it is not possible for us to decide as to was the nature or extent of enquiries/investigation, if any conducted by the A.O. and with respect to which issues the questionnaire was issued, we are unable to decide the assessee‟s plea and since the assessee‟s plea is vital and goes to the roots of cause, we consider it, in the interest of justice, justified to set aside the combined order of CIT and refer the issue back to his file with the directions that issue raised by him by way of show cause notice be decided afresh in accordance with law relating to provisions of section 263 after allowing the assessee a proper opportunity of being heard.”

In view of the aforesaid, we are not inclined to interfere with the order at this stage. However, it is directed that the Commissioner of Income Tax (Central) shall dispose of the matter within a period of three months from today.

As we have been apprised the said authority has fixed the date on 17.2.2010, as agreed to by learned counsel for the parties, the same should be postponed to a further reasonable date and the matter shall be heard and disposed of in terms of the directions given by the Tribunal within the time frame stipulated hereinabove.

The writ petition is accordingly disposed of.” In view of the aforesaid concession, this writ petition also stands disposed of in identical terms of the aforesaid order passed in C.W.J.C. No. 2647 of 2010 but without any order as to costs.

Rishi (Dipak Misra, CJ.)

(Mihir Kumar Jha, J.)

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