2019 (7) TMI 1039 - HC - Income Tax

Stay of proceedings u/s 147/148 for reopening of assessment - HELD THAT - The petitioner did draw the attention of the authorities, after the confirmation of the interim order was passed on 09.01.2018 vide his representation dated 11.01.2018 as manifest from Annexure -A to the supplementary counter affidavit filed in the present proceedings but before the said date the final order had already been passed on the assessment proceedings. The legal position is very well settled and any order passed during operation of the order of stay, is held a nullity. There is no dispute that the assessment order was passed by the Assessing authority i.e the Assistant Commissioner, Income Tax, Circle I, Bhagalpur in purported exercise of power under Section 144/148/143(3) of the Act on 20.12.2017 i.e while the interim order staying further proceedings passed by this Court on 13.12.2017 2017 (12) TMI 1717 - PATNA HIGH COURT was in operation. On this simple note that the assessment order dated 20.12.2017 was passed in violation of the interim order dated 13.12.2017 and without examining the same on merits, we hold the order dated 20.12.2017 of the Assistant Commissioner, Income Tax Circle-1(1), Bhagalpur, void and accordingly quash the same together with demand if any, issued pursuant thereto. We remit this matter back to the Assistant Commissioner, Income Tax, Circle- 1(I), Bhagalpur to pass order afresh but after opportunity of hearing to the petitioner who shall appear before the Assistant Commissioner together with the copy of this order on 15.07.2019 at 11 A.M. and when he shall proceed to dispose of the proceedings in the manner above.

Summary

Issues: Violation of interim order in passing assessment order under Section 148 of the Income Tax Act, 1961

Analysis:
1. The petitioner challenged a notice dated 30.03.2017 issued by the Assistant Commissioner, Income Tax under Section 148 of the Income Tax Act, 1961.
2. A coordinate bench had previously stayed further proceedings under Section 147/148 while issuing notice in December 2017.
3. Despite the interim order, the assessment order was passed on 20.12.2017, during the pendency of the stay.
4. The petitioner raised concerns about the assessment order being passed during the stay period, highlighting the legal principle that any order passed during the operation of a stay is considered a nullity.
5. The High Court held that the assessment order passed on 20.12.2017 was in violation of the interim order dated 13.12.2017 and was therefore void.
6. Consequently, the court quashed the assessment order and any related demands, remitting the matter back to the Assistant Commissioner for fresh consideration.
7. The petitioner was directed to appear before the Assistant Commissioner on a specified date for a fresh hearing in light of the court's decision.