Gujarat High Court
Nitin Babubhai Rohit Or His Successor In ... vs Dharmendra Vishnubhai Patel ... on 21 December, 2017
Author: Harsha Devani
Bench: Harsha Devani, A.S. Supehia
C/SCA/22959/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 22959 of 2017
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NITIN BABUBHAI ROHIT OR HIS SUCCESSOR IN OFFICE....Petitioner(s)
Versus
DHARMENDRA VISHNUBHAI PATEL PROPRIETOR OF M/S AMBICA
SALES....Respondent(s)
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Appearance:
MRS MAUNA M BHATT, ADVOCATE for the Petitioner(s) No. 1
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CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 21/12/2017
ORAL ORDER
(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI) Mrs.Mauna M. Bhatt, learned senior standing counsel for the petitioner has submitted that despite the fact that an appeal under section 246 of the Income Tax Act, 1961 (hereinafter referred to as "the Act") was pending before the Commissioner (Appeals), the respondent herein had filed an application for revision under section 264 of the Act. It was submitted that during the pendency of the appeal before the Commissioner (Appeals), the Principal Commissioner of Income Tax, Gandhinagar has exercised powers under section 264 of the Act and has set aside the order levying penalty and has issued certain directions to the Assessing Officer. It was submitted that thereafter, the Commissioner (Appeals) has passed an order dated 25.09.2017, whereby the penalty levied by the Assessing Officer has been confirmed and the appeal Page 1 of 3 HC-NIC Page 1 of 3 Created On Thu Dec 21 23:03:37 IST 2017 C/SCA/22959/2017 ORDER has been rejected. It was submitted that thus, there are two conflicting orders which have been passed by two authorities. It was submitted that the order passed under section 264 of the Act is void ab initio and without jurisdiction as the revisional authority could not have exercised powers under section 264 of the Act during the pendency of the appeal before the Commissioner (Appeals).
2. While the contention regarding the order under section 264 of the Act having been passed during the pendency of the appeal appears to have some substance, it is a matter of concern that despite the fact that the order passed under section 264 of the Act was brought to the notice of the Commissioner (Appeals), he has still proceeded further with the proceedings and after commenting on the order passed by the Principal Commissioner of Income Tax, has decided the appeal giving a contrary decision.
3. Having regard to the submissions advanced by the learned senior standing counsel for the petitioner and considering the peculiar facts of the present case, issue NOTICE returnable on 9.1.2018. NOTICE also be issued to the Chief Commissioner of Income Tax, Aayakar Bhavan, Ashram Road, Ahmedabad. In the meanwhile, the operation of the impugned order dated 15.3.2017 passed by the Principal Commissioner of Income Tax, Gandhinagar under section 264 of the Act, is hereby stayed.
(HARSHA DEVANI, J.) Page 2 of 3 HC-NIC Page 2 of 3 Created On Thu Dec 21 23:03:37 IST 2017 C/SCA/22959/2017 ORDER (A. S. SUPEHIA, J.) karim Page 3 of 3 HC-NIC Page 3 of 3 Created On Thu Dec 21 23:03:37 IST 2017