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TMI Blog2018 (9) TMI 1412X X X X Extracts X X X X X X X X Extracts X X X X ..... erred from filing such frivolous litigation. However, we are assured by the petitioner that in future he will be careful in not indulging in frivolous litigation. - WP-20378-2018 - - - Dated:- 31-8-2018 - Sanjay Yadav And Ashok Kumar Joshi JJ. For the Petitioner :Shri Umesh Kumar Bohare, learned counsel For the Respondents : Shri Vivek Khedkar, learned Assistant Solicitor General, Shri D.P.S. Bhadoriya, learned counsel ORDER Petitioner is a practicing lawyer and also claims to be a social worker working for upliftment of society in public interest and has been an ex-member of legislative assembly from Datia constituency. Vide present petition which is filed in public interest, the petitioner seeks direction for an enquiry to be caused by the Enforcement Directorate and the Central Bureau of Investigation in respect of alleged undeclared income of ₹ 158157040 discovered by the Income Tax Department for the assessment year 2008. And for the direction to respondents No. 1 to 5 for registering offence under the prevention of corruption act against respondent No.6 to 9. The genesis is the assessment order dated 30.12.2011 passed by the Assistant Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessment order by order dated 31.12.2012. The Commissioner observed : The assessee has challenged the jurisdiction of section 263 mainly on the ground that the assessment order had been the subject matter of appeal which has already been decided by CIT (Appeals). This argument is not plausible for th reason that in the assessment order, in respect of which appeal has been decided by the CIT (Appeals) the additions were made on account of unaccounted investment of ₹ 14,24,60,600/- for purchase of land at Ratanpur and on account of unaccounted investment of ₹ 1,53,41,000/- in purchase of property and cash found in lockers of Shri Usman Khan. Thus, it is clear that the additions made in the assessment order were for unaccounted investments while the income which have escaped assessment are unaccounted illegal gratification of ₹ 16,02,00,000/- received from M/s Nagarjuna Construction Company Ltd and unaccounted illegal gratification of ₹ 10,50,00,000/- received from M/s Simplex Infrastructure Ltd. Thus, it is clear that the subject matter of present order u/s 263 is receipts of income, whereas the subject matter of the appeal were additions on accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ought to have been utilized for such investment. We find no fallacy in this method or calculation the undeclared income in the hands of the assessee. We further hold that the suggestion o change of opinion as done by Ld. CIT was beyond he purview of provision of section 263 of IT Act. The order by Tribunal was challenged by the Commissioner, Income Tax in an Appeal under Section 260-A of the Act, 1961 on the following substantial questions of law in Income Tax Appeal No. 51 /2013. (i) The purport of Section 263 of the Income Tax Act. (ii) Whether there is perceptible distinction between the head unaccounted income and unaccounted investment , in accounting matters; and, if yes, whether the decision followed by the Appellate Tribunal applicable to head unaccounted investment can be the basis to hold that the Commissioner could not have exercised power under Section 263 of the Act in respect of inquiry relating to head unaccounted income . (iii) Whether on the facts and in the circumstances of the case the ITAT was justified in law in quashing the order under Section 263 of the Income Tax Act passed by the Commissioner of Income Tax, Bhopal when the Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n set of circumstances two different opinions can be formed, it is not appropriate to interfere with one of the opinion expressed until and unless the opinion is found to be perverse or based on no evidence or material. If this principle is applied to the present case, we find that the tribunal has not committed any error, it was a case where the exercise of jurisdiction under Section 263 by the Commissioner being unsustainable, the tribunal has rightly interfered into the matter, in view of the interpretation to Section 263 made by the Supreme Court, as detailed hereinabove, interference made by the Commissioner Appeal being unsustainable, we answer question No.1 and 3 by holding that the exercise of power under Section 263 by the appellate authority namely the Commissioner Appeal while passing the appellate order on 31.12.2012 was not proper and by interfering in a proceeding under Section 263 an error has been committed and if the tribunal has interfered on same, no illegality is committed by the tribunal. Once we hold that the exercise of power under Section 263 by the commissioner while passing order on 31.12.2012 was not warranted we have to dismiss this appeal and the oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wly invented concept of PIL and extending our long arm of sympathy to the poor, the ignorant, the oppressed and the needy whose fundamental rights are infringed and violated and whose grievances go unnoticed, unrepresented and unheared; yet we cannot avoid but express our opinion that while genuine litigants with legitimate grievances relating to civil matters involving properties worth hundreds of millions of rupees and criminal cases in which persons sentenced to death facing gallows under untold agony and persons sentenced to life imprisonment and kept in incarceration for long years, persons suffering from the undue delay in service matters, Government or private persons awaiting the disposal of tax cases wherein huge amounts of public revenue or unauthorised collection of tax amounts are locked up, detenus expecting their release from the detention orders etc. etc. - are all standing in a long serpentine queue for years with the fond hope of getting into the courts and having their grievances redressed, the busybodies, meddlesome interlopers, wayfarers or officious interveners having absolutely no public interest except for personal gain or private profit either for themselves ..... 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