9911796707
TMI Blog2011 (10) TMI 472X X X X Extracts X X X X X X X X Extracts X X X X ..... g with the notice, challenged the same before this Court - Held that:- In the present case, nothing invokes the good conscience of this Court for exercising its wide discretionary powers under Articles 226 and 227 of the Constitution of India for quashing of the impugned notice u/s 153A. In considered opinion of this Court, it would be premature to quash such a notice at this stage specially when objections of the assessee in this regard are yet to be decided and the petitioner has made a prayer to this effect also in the writ petition. The interest of justice would be served by now directing the respondents to decide the objections of the petitioner-Trust within one month from today and allow the assessee-Trust to proceed further in the matter - Petition dismissed. - C.W.P. No. 8932 of 2010 - - - Dated:- 14-10-2011 - Dr. Shri Vineet Kothari, J. Represented by: Shri Suresh Ojha for the Petitioner. Shri K.K. Bissa for the Respondent. JUDGMENT 1. By this writ petition, the petitioner, a charitable trust, has challenged the impugned notice Annex-5 dated 24.08.2009 issued under Section 153A of the Income Tax Act, 1961, whereby the respondent No.1 the Assistant Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition. 5. On the other hand, Mr. K.K. Bissa, learned standing counsel for Income Tax Department submitted that a search was made under Section 132 of the Act by issuing warrants of such search on 27.02.2009 itself and warrants were issued in the name of S/Sh. Shyam Sunder Tantia, Anil Tantia and Jagdish Rai Tantia; and copy of "Panchnama" prepared during the course of such search, has been supplied to the petitioner-assessee-trust on 13.10.2010 vide para 24 of the reply to the writ petition, which averments have been admitted by the petitioner in the rejoinder. He also submitted that name of petitioner-Trust has also been mentioned in the search warrant vide paras 21 and 26 of the reply to the writ petition. The present writ petition was filed in this Court on 28.09.2010 and reply was filed on 25.10.2010 and rejoinder on behalf of petitioner was filed on 01.11.2010. However, none of the parties has produced the said "Panchnama" or warrant under Section 132 of the Act on record. 6. Learned counsel for the Revenue, Mr. K.K. Bissa, further submitted that the provisions of Section 153A of the Act was clearly applicable to the facts of the present case as the name of petitioner-Trus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the notice and put forth its case and raise objections before the authority concerned. There is no patent lack of jurisdiction with the respondent No.1 to whom the assessment proceedings were transferred by a valid transfer order under Section 127 of the Act, and, therefore, extraordinary jurisdiction of this Court under Article 226 of the Constitution of India cannot be invoked against the impugned notice. He also submitted that the transfer order under Section 127 of the Act Annex-4 dated 07.07.2009 was perfectly valid and justified as the assessee had obviously no objection against the same, as no such objections were filed against the communication Annex-3 dated 10.06.2009, which inter-alia also indicated the reasons for such transfer, namely, requirement of a coordinated investigation and petitioner- Trust being a case closely connected with the search case. He, therefore, justified the issuance of the impugned notice under Section 153A of the Act also. He also drew the attention of the Court that Annex-8 and 9 representations/objections against notice under Section 153A of the Act were yet to be decided by the said authorities, therefore, the present writ petition is pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or sub-section (2) may be made at any stage of the proceedings, and shall not render necessary the re-issue of any notice already issued by the Assessing Officer or Assessing Officers from whom the case is transferred. Explanation - In Section 120 and this section, the word "case", in relation to any person whose name is specified in any order or direction issued thereunder, means all proceedings under this Act in respect of any year which may be pending on the date of such order or direction or which may have been completed on or before such date, and includes also all proceedings under this Act which may be commenced after the date of such order of direction in respect of any year. " Chapter XIV Assessment in case of search or requisition. 153A. (1) Notwithstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, in the case of a person where a search is initiated under section 132 or books of account, other documents or any assets are requisitioned under section 132A after the 31st day of May, 2003, the Assessing Officer shall - (a) issue notice to such person requiring him to furnish within such period, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ooks of account or documents seized or requisitioned belongs or belong to a person other than the person referred to in section 153A, then the books of account or documents or assets seized or requisitioned shall be handed over the the Assessing Officer having jurisdiction over such other person and that Assessing Officer shall proceed against each such other person and issue such other person notice and assess or reassess income of such other person in accordance with the provisions of Section 153A: Provided that in case of such other person, the reference to the date of initiation of the search under section 132 or making of requisition under section 132A in the second proviso to [sub-section (1) of section 153A shall be construed as reference to the date of receiving the books of account or documents or assets seized or requisitioned by the Assessing Officer having jurisdiction over such other person.] (2) Where books of account or documents or assets seized or requisitioned as referred to in sub-section (1) has or have been received by the Assessing Officer having jurisdiction over such other person after the due date for furnishing the return of income for the assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easons in order to enable him to file appropriate objections, no such objections were really filed by it even though the assessee was specifically called upon to do so vide Annex-3 dated 10.06.2009 in which reasons for such transfer were even communicated to the assessee-Trust. 11. Therefore, in absence of any objection, order of transfer (Annex-4) under Section 127 of the Act, passed by Commissioner of Income Tax on 07.07.2009, cannot be held to be falling foul with the provisions of Section 127 (1) of the Act. In fact, under the said order, all the proceedings of all the family members of person searched under Section 132 of the Act of 1996 including, the petitioner-Trust, whose name was mentioned in such warrants under Section 132 of the Act also and, therefore, all connected cases were transferred from Sriganganagar to Bikaner to one Assessing Authority, and as many as 15 cases of the said family, were transferred by the learned Commissioner of Income Tax from Sriganganagar to Bikaner for coordinated investigation and administrative convenience. It is not in dispute that said Commissioner had power to transfer the proceedings of assessment from one range to another under his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs to the word 'case' for the purpose of the said section as also section 120, the source of power for transfer of the case involving block assessment is relatable only section 120 of the Act. It is a well-settled principle of interpretation of statute that a provision must be construed in such a manner so as to make it workable. When the IT Act was originally enacted, Chapter XIV-B was not in the statute book. It was brought in the statute book only in the year 1996. 10. The power of transfer is in effect provides for a machinery provision. It must be given its full effect. It must be construed in a manner so as to make it workable. Even section 127 of the Act is a machinery provision. It should be construed to effectuate a charging section so as to allow the authorities concerned to do so in a manner where for the statute was enacted. " 14. Therefore, the challenge to order under Section 127 of the Act dated 07.07.2009 must fail and accordingly to this extent the present petition is dismissed. Validity of Notice under Section 153A of the Act 15. Now coming to the validity of the notice under Section 153A (a) of the Act, Annex-5 dated 24.08.2009, firstly, it is observed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed but to some other person, in such situation, such other person has to be assessed with respect to such undisclosed income. The provisions of section 153A and 153C are not only to make assessment of undisclosed income but to make assessment or reassessment of the total income including the previously disclosed income as well as the undisclosed income found as a result of search. 17. Here, in the present case, the assessee-Trust has been called upon to prepare and file its true return of income for assessment year 2008-09 and further it is not before this Court as to whether necessary satisfaction has been recorded or not. Even though Revenue was granted time by this Court on 26.10.2010 for this purpose but it has not produced the said recorded satisfaction. However, the assessee could very well raise this issue before the Assessing Officer himself and if such satisfaction is not recorded or no such satisfaction is communicated to the assessee, the assessee has its remedy under the law before the appellate forums and courts of law. In fact, the assessee has already made representations, Annex-8 9, in this regard which are yet to be decided by respondent. Moreover, it has to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eals, observing that since the reasons for reopening of assessments under section 148 had been disclosed in respect of five assessment years, the Assessing Officer had to dispose of the objections, if filed, by passing a speaking order before proceeding with the assessments for those years. " 18. The legal position is that the appellate Tribunal of Income Tax can also look into the validity and propriety of the search under Section 132 of the Act and, therefore, the Assessee-Trust does have effective alternative remedy in this regard, is also settled by the Division Bench of this Court in Badri Ram Choudhary v. ACIT [D.B. Appeal No.161/2011 - decided on 25.07.2011], relying upon previous decision of Division Bench in the case of CIT v. Smt. Chitra Devi [2009] 313 ITR 174 (Raj.), which has also been affirmed by the Hon'ble Supreme Court also by dismissal of SLP of Revenue in that case. The relevant portion of the aforesaid judgment is reproduced herein below for ready reference: "As stated supra, the legal position viz. whether the Tribunal does have a power to decide the legality and propriety of the raid under Section 132 of the Act remains no longer res integra in the light o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ercised with circumspection and self-imposed discipline. It is not each and every action of the authorities created under the revenue laws or other public authorities, which are required to be examined or redressed by exercising writ jurisdiction of this Court. If only a case falls within the parameters found appropriate for exercise of such jurisdiction that such jurisdiction can be invoked for providing relief to the petitioner against arbitrary and illegal actions of the executive authorities as also ultra vires and unconstitutional legislations. 21. In the present case, nothing of this sort invokes the good conscience of this Court for exercising its wide discretionary powers under Articles 226 and 227 of the Constitution of India for quashing of the impugned notice under Section 153A of the Income Tax Act. In considered opinion of this Court, it would be premature to quash such a notice at this stage specially when objections of the assessee in this regard vide Annex-8 and 9 are yet to be decided and the petitioner has made a prayer to this effect also in the writ petition. 22. On account of an interim order granted by a coordinate bench of this Court on 26.10.2010 in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
