Uttarakhand High Court
M/S Maruti Sah & Brothers ... vs The Principal Commissioner Of Income ... on 23 April, 2019
Author: N.S. Dhanik
Bench: Ramesh Ranganathan, N.S. Dhanik
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Income Tax Appeal No. 08 of 2019
M/s Maruti Sah & Brothers .......Appellants
Versus
The Principal Commissioner of Income Tax & another
.......Respondents
With
Income Tax Appeal No. 09 of 2019
Maruti Nandan Sah .......Appellant
Versus
The Principal Commissioner of Income Tax & another
.......Respondents
Mr. B.M. Pingal, Advocate for the appellants.
Mr. H.M. Bhatia, Senior Standing Counsel for the Income Tax/respondents.
COMMON JUDGMENT
Coram: Hon'ble Ramesh Ranganathan, C.J.
Hon'ble N.S. Dhanik, J.
Dated: 23rd April, 2019 RAMESH RANGANATHAN, C.J. (Oral) These appeals are preferred, under Section 260-A of the Income Tax Act, 1961 (hereinafter referred to as the "Act"), against the order passed by the Income Tax Appellate Tribunal (for short the "ITAT") in ITA No.3044/Del/2018 and ITA No.3045/Del/2018 dated 19.12.2018 remanding the matter to the Assessing Officer for considering the matter afresh, after affording an opportunity to the assessees to put forth their defense on all aspects, as directed by the High Court.
2. Facts, to the limited extent necessary, are that the assessees filed their return of income for the Assessment Year 2009-10. On the ground that some part of the income had escaped assessment, proceedings under Section 147 of the Act were initiated, by issuing a notice under Section 148 thereof on 31.03.2016. The appellants-assessees filed their reply stating that the original return of income may be treated as the return filed in response to the notice under Section 148 of the Act. They sought for the reasons recorded, for the issuance of notice under Section 148 of the Act, to be supplied to them; and the same were furnished to them on 08.06.2016.
23. Questioning the notice issued under Section 148 of the Act, the assessees preferred Writ Petition (M/S) No.2804 and 2813 of 2016. Both the Writ Petitions were dismissed by order dated 26.12.2016. Aggrieved thereby, the assessees-appellants filed Special Appeal Nos.29 and 30 of 2017 and a Division Bench of this Court, in its order dated 15.03.2017, observed that interference under Article 226 of the Constitution was not justified in the facts of the case; and it was open to the appellants (assessees) to raise all such contentions, as were available to them in law, before the statutory authority.
4. The appellants-assessees, thereafter, approached the Income Tax Appellate Tribunal which, in the order under appeal, noted that the learned Single Judge had observed that this Court was not inclined to entertain the writ petition for quashing the notice issued under Section 148 of the Act; it would be appropriate for the petitioner (assessees) to approach the Assessing Officer and reply to the notice; and it was always open to the petitioner to take all the pleas, before the Assessing Officer, which they had taken before the Court.
5. After taking note of the order of the learned Single Judge in Writ Petition (M/S) Nos.2804 and 2813 of 2016 dated 26.12.2016, the Tribunal observed that there was some force in the submission of the assessees that, when the order was passed on 26.12.2016 by the learned Single Judge, they could not have prosecuted their defense effectively before the learned Assessing Officer as only five days were left for the assessment to be completed; the order of the High Court was dated 26.12.2016, and the assessment order was passed on 30.12.2016; and, in such circumstances, they were of the view that, because of the paucity of time, the assessees could not conduct their defense effectively under Section 148 of the Act. The Tribunal deemed it just and proper to set-aside the impugned order, and remand the matter to the Assessing Officer for considering the matter afresh after affording an opportunity to the assessees to put forth their defense in all aspects, in terms of the order of the learned Single Judge which was to approach the Assessing Officer.
36. As noted hereinabove, the Division Bench disposed of the appeal leaving it open to the assessees to pursue the statutory remedy which the learned Single Judge had earlier held was to approach the Assessing Officer. As the learned Single Judge had passed an order on 26.12.2016, and the last date for assessment was 30.12.2016, the assessees, instead, preferred the Special Appeals before the Division Bench. During the pendency of the Special Appeals, revised assessment orders were passed by the Assessing Officer on 30.12.2016. Since the assessees could not have approached the Assessing Officer, thereafter, they preferred an appeal to the Commission of Income Tax (Appeals) and, on the appeal being rejected, they invoked the jurisdiction of the ITAT contending, among others, that the notice under Section 148(1) of the Act was not an effective service of notice. The Tribunal has exercised its discretion and, while setting-aside the revised assessment order dated 30.12.2016, had remanded the matter to the Assessing Officer, leaving it open to the assessees to raise all such contentions, as were available to them in law, before the Assessing Officer. Aggrieved thereby, the present appeals.
7. The only submission urged before us by Mr. B.M. Pingal, learned counsel for the appellants, is that, since the Tribunal is final court of fact, it should have determined the factual dispute regarding effective service of notice under Section 148(1) of the Act; and it ought not to have relegated the matter to the Assessing Officer to examine the matter afresh.
8. As noted hereinabove, the learned Single Judge had, in his order in Writ Petition (M/S) No.2804 and 2813 of 2016 dated 26.12.2016, permitted the assessees to approach the Assessing Officer. In the order under appeal the Tribunal having taken note of the fact that the assessees had a very little time to put forth their defense, set-aside the impugned order; and had directed the assessing officer to examine the matter afresh, leaving it open to the assessees to raise all such contentions as were available to them in law. Exercise of discretion by the Tribunal, to remand the matter to the Assessiong Officer, cannot be said to have caused prejudice to the assessees.
49. Interference, in proceedings under Section 260-A of the Act, is warranted against the order of the Tribunal, only if the said order gives rise to a substantial question of law. The order under appeal, whereby the assessment order was set-aside and the Assessing Officer was directed to examine the matter afresh, leaving it open to the assessees to put forth their defense on all aspects, does not give rise to any such substantial question of law warranting an appeal, under Section 260-A of the Act, being entertained.
10. The appeals fail and are, accordingly, dismissed. No costs.
(N.S. Dhanik, J.) (Ramesh Ranganathan, C. J.)
23.04.2019 23.04.2019
NISHANT