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Madhya Pradesh High Court

Commissioner Of Income Tax ... vs Shri Prashan Pathak on 12 January, 2015

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   M.A.I.T. No.24/2001, I.T.A. No.41/2014, I.T.A. No.42/2014,
    I.T.A. No.43/2014, I.T.A. No.44/2014 & I.T.A. No.45/2014.


13.1.2015.
      Shri Sanjay Lal, learned counsel for the appellant.
      None appears for the respondents, even though served and

represented by the counsel.

The cases are listed in the weekly list from 12.1.2015 at S. No. 4 onwards. The matter was taken on yesterday but as none was present for the respondents, it was adjourned. It is taken up today and again none is present.

Considering the fact that the main appeal MAIT No.24/01 is pending since the year 2001 and all other connected appeals even though filed in the year 2014, arises out of orders passed by the Appellate Tribunal on 4.7.2001 and initially all the appeals were filed in a consolidated manner in the year 2001 but subsequently due to the prohibition contained in the High Court Rules and Orders the appeals filed in the year 2001 were withdrawn and fresh appeals have been filed in the year 2014, accordingly it has to be construed that all these appeals arises out of the order passed in the year 2001 and as the question of law involved in these appeals already stands decided between the department and one of the member of the respondent family viz. Gaya Prasad Pathak, we propose to deal with the matter now and it is not necessary for us to postpone the hearing of the matters.

All these appeals have been admitted for consideration on the following two substantial questions of law:-

1. Whether in the facts and in the circumstances of the case, the learned Tribunal was justified in holding that warrant of authorization issued under Section 132-A in respect of the assessee/respondents was not legal and proper?

2. Whether, on the facts and in the circumstances of the case, the learned Tribunal was justified in holding that the provisions of Section 158-BD and not under Section 158 BC for the block assessment are relevant to assessee/respondent?

As far as question No. 1 with regard to the jurisdiction of the appellate authorities to interfere with the warrant of authorization issued under Section 132-A is concerned, it is seen that this question has already been answered in favour of the revenue by the co- ordinate Division Bench of this Court in the case of Gaya Prasad Pathak vs. Assistant Commissioner of Income Tax and others, 2007 vol. 209 CTR Madhya Pradesh page 74.

The facts in brief goes to show that Gaya Prasad Pathak was working as a Superintendent Engineer in the Public Works Department. On 21st of November, 1995 a search and seizure operation was undertaken at the residential premises of Shri Gaya Prasad Pathak by the Lokayukt Organization under Section 13 (1)(e) of the Prevention of Corruption Act 1988. Subsequently the books of accounts, documents and assets found and seized by the Lokayukt Authorities were requisitioned by the Commissioner of Income Tax, Jabalpur. As per authorization issued under Section 132-A of the Act 3 and based on the same, the assessment proceedings were conducted and undisclosed income was computed to Rs. 82,83,854/- and tax liability imposed upon Shri Gaya Prasad Pathak. The matter traveled to the Income Tax Appellate Tribunal at the instance of Shri Gaya Prasad Pathak and the Income Tax Appellate Tribunal found that the warrant of authorization issued under Section 132-A of Income Tax Act was unsustainable, it was without jurisdiction and quashed the same. The matter came to this Court at the instance of Shri Gaya Prasad Pathak in an appeal under Section 268 of Income Tax Act and by the judgment referred above in the matter of Gaya Prasad Pathak (supra) the co-ordinate Division Bench of this Court has held that the validity or otherwise of a requisition issued under Section 132-A cannot be decided by the Appellate Tribunal exercising jurisdiction under Section 253-A. Identical orders, as challenged in the case of Gaya Prasad Pathak, passed by the Tribunal is now under challenge in these appeals.

Now in this appeal also by the revenue and the same question of law has been framed and respondents assessee herein or none others but the sons, daughters and the legal representative of Gaya Prasad Pathak and the assessment orders in question which was under challenge before the Income Tax Appellate Tribunal in the proceedings under Section 253 initiated at the instance of the respondents/assessee arose out of the action taken after the raid conducted by the Lokayukt Organization on 21st November of 1995 and the authorization issued under Section 132-A which has already been dealt with by the co-ordinate Bench as indicated hereinabove in the case of Gaya Prasad Pathak (supra).

As the first question of law involved in the matter with regard to jurisdiction of the Appellate Tribunal to interfere into an authorization issued under Section 132-A has already been dealt with and decided in the case of Gaya Prasad Pathak (supra), we have no hesitation in holding and answering the issue No. 1 in favour of the revenue for the same grounds and reasons which have already been considered and decided by this Court in the case of Gaya Prasad Pathak (supra). Accordingly, the answer of question No. 1 by holding that the Tribunal had no jurisdiction or authority to interfere with and quash a warrant of authorization issued under Section 132- A of the Income Tax Act for the simple reasons that an requisition issued under Section 132-A is not a proceeding for the assessment and is, therefore, beyond the jurisdiction of Tribunal while considering the question of assessment. Once issue No. 1 which was dealt with by the Tribunal is answered in favour of the department the second question need not be answered now as it has not been gone into by the Tribunal after answering the issue No. 1 in favour of the assessee.

Having held so with regard to the merit of the assessment ordered by the assessing authority the matter is not required to be remanded back to the Tribunal for fresh consideration as in the impugned order after dealing with the question of jurisdiction in the matter of issuance of authorization under Section 132-A of the Act in favour of the assessee, the Tribunal has not gone into the merit of the assessment order.

Accordingly this appeal is allowed to the extent that the findings given by the Tribunal that the warrant of authorization 5 issued under Section 132-A is not valid is quashed and the matter is remanded back to the Tribunal for fresh consideration on merit in accordance with law.

With the aforesaid, all these appeals are allowed and dispose of.

      (Rajendra Menon)                           (S. K. Gangele)
            Judge                                     Judge
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