2023 (7) TMI 1051 - HC - Income Tax

Challenging the assessment order - filing of writ petition instead of appeal before CIT(A) - Petitioner contended that appointed of CIT(A) is not legal and valid - Appointment made by Central Government of Commissioner of Income-tax (Appeals) - Officers belonging to the cadre of Indian Revenue Services - HELD THAT - As we find that the statute, i.e. the Act of 1961 is a self contained code which clearly vests jurisdiction with the Central Government to appoint such persons as it thinks fit to be income tax authorities as are specified in Section 116 of the Act. No express or implied provision contained in the Act of 1961 which may require import of the procedure stipulated for appointment of Joint Secretary to the Government of India to the appointment procedure specified for the Commissioner of Income-tax (Appeals). The appointment of Commissioner of Income-tax (Appeals) is regulated by the provisions of the Act of 1961 and procedure for appointment of Joint Secretary to the Government of India would not get attracted by a ingenious process of reasoning unless there is a specific provision in law to indicate so. We do not find any such stipulation in the Act of 1961, requiring grant of approval to the appointment of Commissioner of Income-tax (Appeals) by the Appointment Committee of the Cabinet. Even creation of a separate cadre of officers for Commissioner of Income-tax (Appeals) does not appear to be essential or mandatory in the scheme of the Act of 1961. In light of the deliberations and observations made above, we find this petition to be lacking in substance. The right of the petitioner to avail the remedy of appeal against the order of assessment is amply protected. The writ petition, therefore, is dismissed.

Summary

Issues:
The issues involved in the judgment are the challenge to assessment orders by an income tax assessee in a writ petition, the availability of the appellate authority as per the statute, and the appointment of Commissioners of Income-tax (Appeals) under the Income-tax Act, 1961.

Challenge to Assessment Orders:
The petitioner, an income tax assessee, challenged the assessment orders in a writ petition, arguing that the appellate authority was not available as per the statute, thus hindering the appeal process. The respondents strongly opposed this argument, highlighting that an appeal lies against the order of assessment under Section 246A of the Income-tax Act, 1961. The petitioner's contention was based on the unavailability of Commissioners of Income-tax (Appeals) for hearing the appeal, despite the appeal being filed. However, the court found that the right to appeal against the assessment order is protected under the statute, dismissing the writ petition.

Appointment of Commissioners of Income-tax (Appeals):
The petitioner contended that Commissioners of Income-tax (Appeals) had not been appointed in accordance with the law, as envisaged by the Income-tax Act, 1961. The petitioner argued that the post of Commissioner of Income-tax (Appeals) should be equivalent to the post of Joint Secretary to the Government of India, requiring appointment by the Appointment Committee of the Cabinet. The court, however, disagreed with this argument, stating that the Act of 1961 provides the Central Government with the jurisdiction to appoint income tax authorities, including Commissioners of Income-tax (Appeals). The court highlighted that officers from the Indian Revenue Services have been appointed as Commissioners of Income-tax (Appeals), and there is no requirement to follow the appointment procedure for Joint Secretaries to the Government of India. The court emphasized that the appointment of Commissioners of Income-tax (Appeals) is regulated by the provisions of the Act of 1961, and the arguments raised by the petitioner were deemed far-fetched and lacking in substance. Consequently, the writ petition was dismissed.

Separate Judgment by the Judges:
The judgment was delivered by Hon'ble Ashwani Kumar Mishra and Hon'ble Syed Aftab Husain Rizvi JJ.