2020 (1) TMI 567 - HC - Income Tax

Maintainability of appeal - authority upon the elected Secretary of the writ petitioner to file the instant writ petition - assessee, however, has not filed the instant writ petition through its President. Instead, one Dinesh Kumar, who claims to be its elected Secretary, has instituted the writ petition - HELD THAT - The bye-laws of the Society conferring authority upon the elected Secretary of the writ petitioner to file the instant writ petition or for that matter, the person claiming to be its elected Secretary have not been brought on record. Manner or resolution by which authority was vested in Dinesh Kumar who has pledged his oath before this Court to file this writ petition on behalf of the Society while claiming to be its elected Secretary has also not been stated in the writ petition. In these circumstances, we find that Dinesh Kumar, claiming to be the elected Secretary of the Society, does not have any locus standi to file the instant writ petition. This issue has particular relevance in this case since, admittedly, there is a dispute within the Society. The main dispute of the Society is not a subject matter of adjudication in the writ proceeding. However, the consequential affect of any order that may be passed in this writ petition is likely to effect the rights of one of the warring / rival party / parties of the Society. The warring / rival parties who are likely to be affected have not been impleaded in this writ petition. In their absence, the writ petition is not maintainable.

Summary

Issues:
1. Impugning a notice under section 148 of the Income Tax Act, 1961.
2. Locus standi of the elected Secretary to file the writ petition.
3. Non-impleadment of warring/rival parties affecting the rights of the Society.

Analysis:

1. The High Court was presented with a notice under section 148 of the Income Tax Act, 1961, dated 18th March, 2019, which was challenged by the assessee, M/s Shriram Chandra Mission. The Court noted that the writ petition was filed by an individual claiming to be the elected Secretary of the Society, but the authority vested in him to file the petition was not supported by the Society's bye-laws. This lack of authority raised concerns regarding the locus standi of the elected Secretary to file the petition.

2. The Court observed that the elected Secretary, Dinesh Kumar, did not have the necessary authority to file the writ petition on behalf of the Society. The absence of clarity regarding the manner or resolution through which authority was conferred upon Dinesh Kumar led the Court to conclude that he lacked the locus standi to initiate the petition. Additionally, the Court highlighted that there was a dispute within the Society, and the non-impleadment of the warring/rival parties who could be affected by the outcome rendered the writ petition non-maintainable.

3. The Court emphasized that the main dispute within the Society was not the subject matter of the writ proceeding. However, the potential impact of any order resulting from the petition could affect the rights of the warring/rival parties, who were not included in the petition. Consequently, the Court held that the writ petition was liable to be dismissed due to the lack of locus standi of the elected Secretary and the non-impleadment of parties whose rights could be affected. The dismissal of the petition was ordered, with a clarification that it would not prejudice the Society's ability to pursue other legal remedies available to them.