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Un-necessary litigation by taxpayer is also not desirable –awarding costs can discourage litigation |
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Un-necessary litigation by taxpayer is also not desirable –awarding costs can discourage litigation |
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M/s. Dev Bhumi Industries Versus Commissioner of Income Tax And Others 2017 (4) TMI 58 - SUPREME COURT, affirming: In which the following judgments were referred and relied on:
The relevant facts for purpose of study: a. Assessee firm had already availed statutory remedy by filing an appeal before CIT(A), against assessment order. b. After filing of such an appeal, assessee firm filed Writ Petition (WP) before High Court and prayed relief as follows: “(a) For a writ of certiorari or any other applicable writ or order or direction quashing the assessment order dated 26.12.2006 passed by the respondent No.2 w.r.t. the Petitioner Firm for the Assessment Year 2001-2002; (b) For a writ of certiorari or any other applicable writ or order or direction quashing the transfer order dated 18/19.01.2006 passed by the Respondent No.1 w.r.t. the Petitioner Firm for the Assessment Year 2001-2002.” c. In the WP the fact that an appeal has been filed was not mentioned. This is clear from the following observation of the High Court “What to talk of an extraordinary situation or circumstance, the petitioner firm has not even disclosed about the pendency of the appeal in its writ petition …” d. Some disputes about address, service of notices etc. were raised, however, such disputes appears not maintainable because subsequently notices were served properly and assessee had acted on such service of notices. e. On reading of judgment author could not find any mention about challenge of transfer of files before lower authorities. It may be that lack of jurisdiction was also made a ground in appeal filed beforde CIT(A). Observation so author a. Author feels that it was required to properly mention by the Petitioners in WP and Affidavit that an appeal is pending. Not mention this vital fact in petition, is a serious omission in petition. b. If any petition for cancellation of transfer was made, it must also have been mentioned in WP. c. In the WP main issue raised in the appeal filed before appellate authority must have been mentioned. d. Hiding of facts was not proper. e. After clearly mentioning about pendency of appeal, Petitioners could have make out a case of extra ordinary or special circumstances for admission of WP. f. As observed earlier,if steps taken, if any,for cancellation of transfer orders failed and transfer orders were not proper and liable to set aside, then the first prayer should be in this regard. If the transfer order is not valid then transferee officer will not have jurisdiction. However, in WP first prayer is for cancellation of assessment order. g. If any fact was not omitted from WP, then perhaps WP could have been maintainable with primary relief being challenge to transfer orders and as a consequence assessment order being without jurisdiction of the transferee officer, would be liable to set aside. This was a fit case for awarding costs payable by assessee: Author feels that this case was fit for awarding costs payable by assessee to the revenue for the following reasons: a. a misleading WP in which vital facts were not mentioned. – this can be considered as an attempt to mislead honourable Court. b. An un-necessary WP because an appealbefore CIT(A) and then in case of need before Tribunal .. is proper and effective remedies c. Filing of WP in this case can be regarded abuse of process of law. Taxpayers must also try to find out better solution and should not indulge into un-necessary litigation before Courts when an effective remedy is available and provided by law in specific circumstances in which case of taxpayer falls.
By: CA DEV KUMAR KOTHARI - April 10, 2017
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