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TMI Blog2022 (5) TMI 627X X X X Extracts X X X X X X X X Extracts X X X X ..... ions are being filed in which the date and time of issuance of notice under Section 148 of the Income Tax Act, 1961 are in issue, and, importantly, those notices are being issued by e-mail, it is directed that the respondent no. 1 shall ensure that the date and time of triggering of e-mail for issuing notices and orders are reflected in the online portal relating to the concerned assessees. Facts of the case as discussed above, particularly the observations made by the respondent no.4 in the last line of the impugned order dated 19.03.2022 noticed by us in our order [ 2022 (5) TMI 421 - ALLAHABAD HIGH COURT] above clearly indicates that the order dated 19.02.2022 has been passed by the respondents in breach of judicial discipline and propriety causing harassment to the petitioner/assessee on account of the failure to give effect to the order of this Court [ 2022 (3) TMI 1373 - ALLAHABAD HIGH COURT] which was filed by the petitioner. We propose to comment on the conduct of the officer concerned but the respondents have tendered unconditional apology by filing a short counter affidavit dated 22.04.2022, as noted in para 7 above, therefore, in view of the unconditional apology tendere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1041898744(1), passed by Assessing Officer." 4. On 18.04.2022, this writ petition was heard at length and following order was passed. 1. Heard Shri Abhinav Mehrotra, learned counsel for the petitioner, Shri Gaurav Mahajan, learned Senior Standing Counsel for the respondent nos. 2, 3 and 4 and Shri Arvind Kumar Goswami, learned Central Government Standing Counsel for the respondent no. 1. 2. This writ petition has been filed praying for the following relief: "(a) Issue a writ, order or direction in the nature of certiorari quashing the order dt. 19.03.2002 passed by the respondent revenue rejecting the objections taken by petitioner on the matter concerning "issue" of notice under Section 148 of the Income Tax Act. (b) Issue a writ, order or direction in the nature of certiorari quashing the notice under Section 148 of the Income Tax Act, as also the sanction, authorising the issuance of such notice, both even dt. 31.03.2021; and the connected proceedings for reassessment of income for A.Y. 2013-14." 3. The petitioner has earlier filed Writ Tax No. 171 of 2022 which was disposed of by order dated 10.3.2022 as under: "Heard Sri Abhinav Mehro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... BA by AO, and (iii) triggering of e-mail. These details are also totally lacking in the impugned order. 7. Under the circumstances, we direct the respondent no. 4 to file a personal affidavit of an officer of the Centre not below the rank of Additional Commissioner of Income Tax to explain the things as noted above and file copies of 'sent time stamp' and reports of Income Tax Business Application Technical Team, within three days. 8. Put up as a fresh case on 21.4.2022 at 10:00 AM. (emphasis supplied by us) 5. On 21.04.2022, matter was again heard and following order was passed, as under"- "1. Heard learned counsels for the parties. 2. Shri Gaurav Mahajan, learned Senior Standing Counsel for the respondent-Income Tax Department prays for further time to enable the respondent no.4 to file his personal affidavit in compliance to the order dated 18.04.2022. 3. In our order dated 18.04.2022, we have noted the facts as well as the conduct of the respondents that they have clearly denied to obey the final judgment of this Court. That apart, the respondents have also attempted to mislead the Court by suppressing material facts. Despite time granted, personal affi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 148 of the Act was issued by Jurisdictional assessing Officer on 31-03-2021 and that the notice u/s 148 was placed on the e filing portal of the assessee on 31-03-2021. The rest of information with regard to issuance of notice is now provided by the ITBA /JAO in response to the High Court Order vide his email dated 23-04-22 sent to office of the deponent. 7. That in the present case the Technical Team of ITBA provided the following details to the JAO through email on 22.04.2022 and the same was also shared with the office of the deponent. The reply received from the Technical Team of ITBA is as follows :- Date & time of Generation of Notice u/s 148 in ITBA system by AO: 3/31/2021 9:01:29 PM Date & time of Digital signing (DSC) in ITBA by AO : 3/31/2021 9:51:46 PM Date &time of triggering of email automatedly by ITBA technical servers : 4/01/2021 5:30:08 AM Date & time of delivery of email as per data in ITBA technical servers : 4/01/2021 5:30:10 AM A photocopy of the email from JAO is enclosed herewith and marked as Annexure No. SCA-2. 8. That it is most respectfully submitted that there was no concealment on the part of FAO or ReFAC(AU) as such there was no a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndicates that the order dated 19.02.2022 has been passed by the respondents in breach of judicial discipline and propriety causing harassment to the petitioner/assessee on account of the failure to give effect to the order of this Court dated 10.03.2022 in Writ Tax No. 171 of 2022 which was filed by the petitioner. We propose to comment on the conduct of the officer concerned but the respondents have tendered unconditional apology by filing a short counter affidavit dated 22.04.2022, as noted in para 7 above, therefore, in view of the unconditional apology tendered by the deponent Sri Pawan Kumar Sharma, Additional Commissioner of Income Tax in the aforesaid short counter affidavit, we do not propose to proceed against the respondent no.4 by referring the matter for contempt. However, we direct the respondents to be careful in future and must have due regard to the judgments and orders of this Court, keeping in mind the settled principal of judicial propriety and discipline. Breach of Judicial Discipline-Misconduct-Contemptuous. 11. In the case of Union of India Vs. Kamlakshmi Finance Corpn. Ltd. 1992 (Suppl) SC-C 443 (para 6) Hon'ble Supreme Court upheld the observation of Hon'b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicial jurisprudence developed in this country in last six decades…." 13. In the case of Kishore Samrite versus State of U.P. and others 2013 (2) SCC 398 (para 29), Hon'ble Supreme Court held as under:- "29. Judicial discipline and propriety are the two significant facets of administration of justice. Every court is obliged to adhere to these principles to ensure hierarchical discipline on the one hand and proper dispensation of justice on the other. Settled canons of law prescribe adherence to the rule of law with due regard to the prescribed procedures. Violation thereof may not always result in invalidation of the judicial action but normally it may cast a shadow of improper exercise of judicial discretion." 14. In the case of Bishnu Ram Borah and another Vs. Parag Saikia and others 1984 (2) SCC 488 ( para 11), Hon'ble Supreme Court observed as under:- "11. It is regrettable that the Board of Revenue failed to realize that like any other subordinate tribunal, it was subject to the writ jurisdiction of the High Court under Article 226 of the Constitution. Just as the judgments and orders of the Supreme Court have to be faithfully obeyed and carried out throughout ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be given due acceptance and enforcement by the smaller Benches of the Commission. The rule of precedence is equally applicable to intra-court appeals or references in the hierarchy of the Commission". 18. In the case or Dr. H. Phunindre Singh and others Vs. K.K. Sethi and another (1998) 8 SCC 640 (para 2) Hon'ble Supreme Court considered the question of deliberate violation of the subsisting order of the Court and held as under:- " 2. Heard learned counsel for the parties. In our view, in the facts of the case, particularly when the order passed by the learned Single Judge of the High Court was not stayed by the Division, Bench, the contempt petition should have been disposed of on merits instead of adjourning the same till disposal of the appeal, so that question of deliberate violation of the subsisting order of the Court is considered and enforceability of the Court's order is not permitted to be diluted. In the facts of the case, we feel that the contempt petition should be disposed of within a period of three months from the date of the communication of this order and we order accordingly. It is further directed that before disposal of the contempt petition, the pending ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is barred by principle of res judicata. has dismissed the claim petition in violation of the judgment and order of this Court dated 23.8.2005 passed in Writ Petition No.1381 (S/B) of 2005. 5. In the hierarchy of system, the power of superintendence on all subordinate courts, authorities and tribunals is vested under Article 227 of the Constitution of India. After remitting of matter by this Court by the judgment and order dated 23.8.2005, it was not open for the Tribunal to reject the petitioner's case with the finding that the claim petition is barred by res judicata. Learned member of the Tribunal while recording such finding have over stepped jurisdiction vested in them which at the face of record, amounts to contempt of this Court. Both the members of the Tribunal ought to have been cautious of the settled principles of law that they should not have rejected the claim petition in contravention of directions issued by this Court." 23. In Income Tax Appeal No. 293 of 2016 ( The Pr. Commissioner of Income Tax-9, Mumbai Versus M/s Associated Cables Pvt. Ltd, Mumbai, decided on 03.08.2018 Division Bench of Bombay High Court held that "…... Merely filing of an SLP ..... X X X X Extracts X X X X X X X X Extracts X X X X
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