2009 (12) TMI 927 - HC - Income Tax

Revision u/s 263 - as per CIT assessment order passed by AO u/s 143(3)/153A in respect of assessment year 1999-2000 is erroneous and prejudicial to the interest of the Revenue because of the reason that certain issues, highlighted in the said order, were not considered at the time of framing of the issues - assessment order has been set aside with direction to the AO to frame the assessment afresh after affording the assessee an opportunity of being heard and after making proper enquiries and verifications HELD THAT - In the present case, various correspondence and documents which are referred to by the learned senior counsel appearing for the petitioner indicate that Mr. A.L. Mehta had been writing time and again that income had escaped assessment and, therefore, the matter should be looked into. The argument of the respondents is that the CBDT had wanted the matter to be examined and never intended that the orders are to be passed in one particular manner only. It was pointed out that no such directions were given by the CBDT to the respondent No.4 directing him to pass an order under Section 263 of the Act, necessarily reopening the assessments. He was called upon to examine the matter. The Commissioner passed detailed order under Section 263 of the Act, which depicts his independent mind, and various observations made in this order are not at the dictates of any authority. It was for this reason that submission of learned senior counsel for the petitioner was not that any such specific direction was given. Attempt was to demonstrate that the CBDT had almost dictated the line of action to the respondent No.4 making him virtually impossible to exercise independent judgment and unfettered discretion in discharge of his statutory function under Section 263 of the Act. It is not necessary for us to give any authoritative pronouncement on this aspect in the facts of this case. Reason is simple and obvious. ASG, as noted above, as conceded that an opportunity shall be granted to the petitioner for making its submissions on the merits of the case by the Commissioner and thereafter fresh order would be passed. For this reason alone, once we proceed to set aside the impugned order, the effect would be that the concerned Commissioner will have to go into this issue afresh for considering the submissions of the petitioner, which would necessarily involve application of his independent mind. This, coupled with the fact that the Commissioner who passed the order is no more the concerned officer, i.e. the respondent No.4, the matter will have to go to another office discharging the duties in the capacity of respondent No.4. In these circumstances, the very basis of the submission that the impugned order was passed on the dictated lines of CBDT vanishes. Present Commissioner/respondent No.4, while exercising his powers under Section 263 of the Act, shall look into the matter with independent mind without being influenced by the observations made in the impugned order. While doing so, he shall have regard to the submissions that would be made by the petitioner pleading that it is not a case for exercising powers under Section 263 of the Act. We also permit the petitioner to raise the plea that Mr. Mehta is not a whistleblower, but is a disgruntled person being an ex-employee of the petitioner, who has been fabricating and filing false and frivolous complaints against the petitioner. Assessment completed under monitoring/supervision Not amenable to revision u/s 263 - case of the petitioner is that the assessment under Section 153A of the Act was completed under the monitoring of the ACIT/ CIT/CCIT/CBDT and, therefore, such an order could not be regarded as erroneous, much less prejudicial to the interest of the Revenue - HELD THAT - As contented an assessment order is passed under the monitoring of the Commissioner, the successor Commissioner could not set aside the assessment on the ground that the assessment order was passed without application of mind. Since the matter has to be considered afresh by the Commissioner, even this contention can be raised by the petitioner before the said Commissioner and the Commissioner, while passing the order, shall specifically deal with this contention. WP is allowed and the impugned order passed by the CIT respondent No.4 is hereby set aside. However, liberty is granted to the respondent No.4 to appropriately deal with the matter and pass fresh order after giving opportunity of being heard to the petitioner on various points canvassed before us or which it intends to raise at the time of fresh hearing.

Issues Involved:
1. Legality of the order passed under Section 263 of the Income Tax Act, 1961.
2. Violation of principles of natural justice.
3. Allegations of mala fides and undue influence.
4. Impact of monitoring/supervision by higher authorities on the revisional jurisdiction under Section 263.

Detailed Analysis:

1. Legality of the order passed under Section 263 of the Income Tax Act, 1961:
The petitioner challenged the order dated 19.6.2008 passed by the Commissioner of Income Tax (Central-II) under Section 263 of the Income Tax Act, 1961, which set aside the assessment order dated 1.6.2006 for the assessment year 1999-2000. The Commissioner opined that the assessment order was erroneous and prejudicial to the interests of the Revenue as certain issues were not considered during the assessment. The petitioner argued that this order was illegal and mala fide.

2. Violation of principles of natural justice:
The petitioner contended that the impugned order was passed in violation of the principles of natural justice. The petitioner had raised preliminary objections to the assumption of jurisdiction under Section 263 and requested the Commissioner to dispose of these objections before proceeding on merits. However, the Commissioner did not provide an opportunity to the petitioner to make submissions on merits, thereby taking the petitioner by surprise when the impugned order was received.

3. Allegations of mala fides and undue influence:
The petitioner alleged that the reopening of the case and the subsequent order under Section 263 were influenced by undue pressure from superior authorities, particularly due to the actions of Mr. A.L. Mehta. The petitioner argued that Mr. Mehta, a former employee with grievances against the petitioner, had been fabricating and filing false complaints, which led to undue influence on the Commissioner by the CBDT. The petitioner cited various communications and case law to support the claim that the Commissioner's order was not an independent exercise of judgment but was impelled by external pressures.

4. Impact of monitoring/supervision by higher authorities on the revisional jurisdiction under Section 263:
The petitioner argued that the original assessment under Section 153A was completed under the monitoring of higher authorities, including the Commissioner and the CBDT. Therefore, the assessment order could not be subjected to revisional jurisdiction under Section 263. The petitioner relied on documents and case law to support the contention that once an assessment order is passed under such monitoring, it should not be regarded as erroneous or prejudicial to the interests of the Revenue.

Conclusion:
The court acknowledged the concession by the learned Additional Solicitor General that the Commissioner would provide an opportunity to the petitioner to make submissions on merits and pass a fresh order. Consequently, the impugned order dated 19.6.2008 was set aside, and the Commissioner was directed to deal with the matter afresh, ensuring an independent exercise of judgment. The court also allowed the petitioner to raise the plea that Mr. Mehta was a disgruntled ex-employee fabricating complaints. The court did not authoritatively pronounce on the contentions raised by the petitioner, leaving it to the Commissioner to objectively deal with these contentions.

For the other writ petitions challenging show-cause notices under Section 263 for different assessment years, the court directed the Commissioner to follow the same parameters and disposed of these petitions accordingly. The issue of limitation was not to be raised by the petitioners due to the pendency of the petitions in court. All pending applications were disposed of.

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