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2017 (11) TMI 1744 - HC - Income TaxValidity of Search action against the petitioner under Section 132 - alternative remedy - Held that - The assessee-petitioner obviously had an alternative, adequate and efficacious remedy against the said order passed by the learned CIT(A) before the Income Tax Tribunal again under Section 253 of the Act. There appears to be no justification for cutting short that regular remedy at this stage and to entertain these writ petitions on merits. The lower Appellate Authorities of the Income Tax Department cannot be expected to look into these questions of validity of search under Section 132 of the Act at their own level independently. Therefore this Court does not find any good ground to allow the petitioner to bypass the said alternative remedy and directly assail the order of learned CIT(A) before this Court. The writ petitions being devoid of merit are accordingly dismissed.
Issues:
1. Validity of search action under Section 132 of the Income Tax Act. 2. Jurisdiction of CIT(A) to adjudicate on the validity of search action. 3. Applicability of recent Amendment to Explanation in Section 132(1) of the Act. 4. Remand of the matter back to CIT(A) for reconsideration. 5. Availability of alternative remedy before the Income Tax Tribunal. Analysis: 1. The High Court dealt with the issue of the validity of search action under Section 132 of the Income Tax Act. The Income Tax Appellate Tribunal (ITAT) remanded the case to the Commissioner of Income Tax (Appeals) [CIT(A)] for proper adjudication of the additional ground of appeal relating to the validity of the jurisdiction under Section 153A and the existence of conditions for the issuance of a search warrant under Section 132A. The ITAT emphasized the importance of verifying the existence of conditions before concluding on the validity of jurisdiction. The CIT(A) dismissed the appeal of the assessee-petitioner, stating that it could not delve into the question of the validity of the search action under Section 132 of the Act. 2. The High Court further examined the jurisdiction of the CIT(A) to adjudicate on the validity of the search action. The CIT(A, in its order, cited the decision of the Hon'ble High Court of Karnataka in a previous case and the judgment of the Chattisgarh High Court. The CIT(A) held that it was not within its powers to scrutinize the reasons for search ordered by the Director or Director General of Income Tax. The High Court observed that the CIT(A) was justified in following the decision of the Chattisgarh High Court and refusing to delve into the question of the validity of the search action under Section 132 of the Act. 3. The High Court considered the applicability of a recent Amendment to the Explanation in Section 132(1) of the Act. The Amendment, inserted by the Finance Act, 2017, with retrospective effect from 1-4-1962, stated that the reason to believe as recorded by the income-tax authority shall not be disclosed to any person or authority. The assessee-petitioner challenged the validity of this Amendment through a separate writ petition pending in the Court. The High Court noted that the Amendment prohibited the Appellate Authorities from examining the reasons recorded for a search against the assessee or taxpayer. 4. The High Court addressed the request for remanding the matter back to the CIT(A) for reconsideration. The counsel for the assessee-petitioner argued for a remand based on specific directions of the ITAT, which the CIT(A) allegedly failed to comply with in the present case. However, the High Court concluded that the impugned order of the CIT(A) could not be faulted, and there was no justification for bypassing the regular remedy of appealing before the Income Tax Tribunal under Section 253 of the Act. 5. Finally, the High Court discussed the availability of an alternative remedy before the Income Tax Tribunal. The Court emphasized that the assessee-petitioner had an adequate and efficacious remedy against the order passed by the CIT(A) before the Tribunal. The High Court dismissed the writ petitions, stating that there was no good ground to allow the petitioner to directly challenge the CIT(A)'s order before the Court. The Court directed that if the assessee-petitioner files an appeal before the Income Tax Tribunal within 30 days, it may be entertained without objections of limitation, subject to compliance with the provisions of the Act.
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