2013 (10) TMI 932 - HC - Income Tax

Whether the Tribunal was justified in holding that it cannot examine the legality and correctness of the raid conducted under section 132 of the Act because the very issue is pending before the High Court at the instance of the appellant-assessee Held that - Appellant has now submitted that they do not wish to prosecute the writ petition in the High Court and hence they may be allowed to withdraw the writ petition with a liberty to raise and challenge the legality and propriety of the raid before the Tribunal in the appeal out of which this appeal arises by remanding the appeal to the Tribunal. Once the appellant seeks withdrawal of the writ petition filed by the appellant wherein the challenge was laid to the legality and propriety of the raid, then they can be permitted to raise and challenge the legality of the raid before the Tribunal because the purpose is to invite finding from competent court of law on the issue as to whether the raid is legal or not? Though the Tribunal rightly recorded a finding that it cannot go into the question because the issue is pending before the High Court but now in the light of the submissions made by the appellant s counsel seeking withdrawal of the writ petition, the Tribunal is now entitled and competent to examine the legality and propriety of the raid in an appeal filed by the appellant out of which this appeal arises - Let the appeal be now decided by the Tribunal within a period of six months.

Issues:
- Admissibility of appeal based on substantial question of law regarding legality of raid conducted under section 132 of the Act.
- Consideration of legality and correctness of the raid in appeal despite pending writ petition challenging the raid.
- Permissibility of withdrawal of writ petition to allow challenge of raid legality in the appeal.
- Tribunal's authority to examine legality and propriety of raid under section 132 of the Act.
- Remand of the case to the Tribunal for fresh consideration including raid legality and validity.

Analysis:

The High Court considered the admissibility of an appeal based on a substantial question of law regarding the legality of a raid conducted under section 132 of the Income-tax Act. The appeal was filed against an order passed by the Tribunal. The issue arose from a block period and had been contested by the assessee before the Tribunal and through a pending writ petition before the High Court.

The Court acknowledged that the Tribunal refrained from examining the raid's legality due to its pendency before the High Court in the writ petition. However, the appellant expressed a desire to withdraw the writ petition and challenge the raid's legality in the appeal. The appellant argued that the Tribunal should have the power to assess the raid's legality, citing a previous court decision supporting this stance.

Both parties agreed that the appeal could proceed with the challenge to the raid's legality before the Tribunal. The Court, after considering the submissions and legal position, allowed the appeal, set aside the previous order, and remanded the case to the Tribunal for a fresh decision. The Tribunal was directed to consider all issues, including the raid's legality, giving the Department an opportunity to defend the raid proceedings.

The Court emphasized that the Tribunal had the authority to examine the legality and propriety of the raid under section 132 of the Act. Referring to a previous judgment upheld by the Supreme Court, the Court confirmed the Tribunal's competence in deciding such matters. The appeal was to be decided by the Tribunal within six months, with the parties instructed to submit the order to facilitate the appeal's hearing.

In conclusion, the High Court allowed the appeal, remanding the case to the Tribunal for a comprehensive reconsideration, including the legality and validity of the raid, ensuring due process and opportunity for the Department to present its case.

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