Rajasthan H.C : Co-ordinated investigation is valid ground for transfer of case under section 127 from one Assessing Officer to another

High Court Of Rajasthan

J.R. Tantia Charitable Trust vs. DCIT, Central Circle Bikaner

Assessment Year : 2008-09

Section : 127

Dr. Vineet Kothari, J.

S.B. Civil Writ Petition No. 8932 Of 2010

October 14, 2011

JUDGMENT

By this writ petition, the petitioner, a charitable trust, has challenged the impugned notice Annex-5 dated 24.08.2009 issued under Section 153A of the Income Tax Act, 1961, whereby the respondent No.1 the Assistant Commissioner of Income Tax (Central), Bikaner called upon the petitioner to prepare and file a true and correct return of its total income in respect of which, the petitioner assessee as individual, HUF, firm, company, AOP, Body of Individual / local authority is assessable for the above assessment year 2008-09.

The said respondent-Assistant Commissioner, (Central), Bikaner appears to have issued the impugned notice to the petitioner-assessee in pursuance of order Annex-4 dated 07.07.2009 passed by the Respondent No. 2, Commissioner of Income Tax, Bikaner under Section 127 of the Act transferring the assessment proceedings of the petitioner’s case from ITO Ward-2, Sriganganagar to D.C.I.T. (Central), Bikaner and as many as 15 cases of family members were transferred to Bikaner by the same order.

The petitioner has challenged both these, Annex-4 order under Section 127 of the Act dated 07.07.2009 and notice under Section 153A of the Act of 1961 (Annex-5) dated 24.08.2009, by way of present writ petition.

Learned counsel for the petitioner, Mr. Suresh Ojha, urged that Section 127 (1) of the Income Tax Act, 1961 enjoins upon the assessing officer, a duty to record his reasons for transfer of any case from one assessing authority to another. He submitted that no such reasons were recorded in the present case and, therefore, the order Annex-4 dated 07.07.2009 of respondent No. 2, Commissioner is vitiated. He further submitted that impugned notice issued under Section 153A of the Act (Annex-5), is also liable to be quashed because said provision of Section 153A of the Act can be invoked only if a search was initiated against the assessee- trust itself under Section 132 of the Act; and since no such search was carried-out against the petitioner, therefore, the said provision is not applicable in its case. He further submitted that only a survey under Section 133A of the Act was conducted on the same day against the assessee-Trust on 27.02.2009 vide Annex-7 and even though search was also carried out under Section 132 of the Act against certain individual family members, but Section 153A, could not be applied in the case of the present petitioner Trust. He, therefore, submitted that both these impugned orders under Section 127 of the Act and notice under Section 153A of the Act against the petitioner-assessee deserve to be quashed in the present writ petition.

On the other hand, Mr. K.K. Bissa, learned standing counsel for Income Tax Department submitted that a search was made under Section 132 of the Act by issuing warrants of such search on 27.02.2009 itself and warrants were issued in the name of S/Sh. Shyam Sunder Tantia, Anil Tantia and Jagdish Rai Tantia; and copy of “Panchnama” prepared during the course of such search, has been supplied to the petitioner-assessee-trust on 13.10.2010 vide para 24 of the reply to the writ petition, which averments have been admitted by the petitioner in the rejoinder. He also submitted that name of petitioner-Trust has also been mentioned in the search warrant vide paras 21 and 26 of the reply to the writ petition. The present writ petition was filed in this Court on 28.09.2010 and reply was filed on 25.10.2010 and rejoinder on behalf of petitioner was filed on 01.11.2010. However, none of the parties has produced the said “Panchnama” or warrant under Section 132 of the Act on record.

Learned counsel for the Revenue, Mr. K.K. Bissa, further submitted that the provisions of Section 153A of the Act was clearly applicable to the facts of the present case as the name of petitioner-Trust was also mentioned in the warrant of authorization under Section 132 of the Act and the said provision containing anon-obstanteclause, clearly permits such a notice to be issued “where search is initiated under Section 132 or Books of Account, other documents or any assets are requisitioned under Section 132A after 31st day of May, 2003”.

He also drew the attention of the Court towards the opportunity given to the petitioner-Trust before passing the assessment order by the respondent No. 2- Commissioner of Income Tax, under Section 127 of the Act for transferring its case from ITO, Ward-2, Sriganganagar to D.C.I.T. (Central) Bikaner vide notice Annex-1 dated 13.05.2009. A reply thereto was filed by the assessee vide Annex-2 dated 02.06.2009 asking the said authority to supply the reasons for transfer of the jurisdiction for the assessee so that the petitioner-Trust may file proper objection, if any. The respondent No. 3, Commissioner again issued a notice Annex-3 dated 10.06.2009, in which it was clearly stipulated that “transfer of jurisdiction is required for the purpose of coordinated investigations, being a case closely connected with the search case. Your reply should reach the undersigned within seven days from the receipt of this notice, failing which it will be presumed that you have no objection in transfer of your case to the Central Circle, Bikaner.”

Surprisingly, the assessee did not file any response to this notice Annex-3 dated 10.06.2009 and no objections thereafter appear to have been filed by it before the learned Commissioner of Income Tax, Bikaner. Accordingly, drawing the presumption that the assessee had no objection to the transfer of its assessment proceedings from Sriganganagar to Bikaner, an order under Section 127 of the Act was passed vide order Annex-4 dated 07.07.2009 and consequently the respondent No. 1- Assistant Commissioner, Income Tax (Central), Bikaner issued the notice under Section 153A (a) of the Act vide Annex-5 for the assessment year 2008-09 on 24.08.2009. The assessee has challenged this order and notice before this Court by filing the aforesaid writ petition.

Learned counsel for the Revenue, therefore, submitted that the present writ petition is not only premature but is liable to be dismissed on merits as well because the petitioner-assessee can always appear before the concerned authority in pursuance of the notice and put forth its case and raise objections before the authority concerned. There is no patent lack of jurisdiction with the respondent No.1 to whom the assessment proceedings were transferred by a valid transfer order under Section 127 of the Act, and, therefore, extraordinary jurisdiction of this Court under Article 226 of the Constitution of India cannot be invoked against the impugned notice. He also submitted that the transfer order under Section 127 of the Act Annex-4 dated 07.07.2009 was perfectly valid and justified as the assessee had obviously no objection against the same, as no such objections were filed against the communication Annex-3 dated 10.06.2009, which inter-alia also indicated the reasons for such transfer, namely, requirement of a coordinated investigation and petitioner- Trust being a case closely connected with the search case. He, therefore, justified the issuance of the impugned notice under Section 153A of the Act also. He also drew the attention of the Court that Annex-8 and 9 representations/objections against notice under Section 153A of the Act were yet to be decided by the said authorities, therefore, the present writ petition is premature. The petitioner-Trust has further appellate remedies under the Act.

I have heard learned counsels for the parties at length and perused the record and relevant provisions of the Act.

Sections 127, 153A and 153C of the Act, which are relevant for the present purpose, are reproduced hereunder to the extent relevant for ready reference:

“Chapter XIII

Power to transfer cases.

127-(1) The Director General or Chief Commissioner or Commissioner may, after giving the assessee a reasonable opportunity of being heard in the matter, wherever it is possible to do so, and after recording his reasons for doing so, transfer any case from one or more Assessing Officers subordinate to him (whether with or without concurrent jurisdiction) to any other Assessing Officer or Assessing Officers (whether with or without concurrent jurisdiction) also subordinate to him.

(2) Where the Assessing Officer or Assessing Officers from whom the case is to be transferred and the Assessing Officer or Assessing Officers to whom the case is to be transferred are not subordinate to the same Director General or Chief Commissioner or Commissioner,-

(a) where the Directors General or Chief Commissioners or Commissioners to whom such Assessing Officers are subordinate are in agreement, then the Director General or Chief Commissioner or Commissioner from whose jurisdiction the case is to be transferred may, after giving the assessee a reasonable opportunity of being heard in the matter, wherever it is possible to do so, and after recording his reasons for doing so, pass the order;

(b) where the Directors General or Chief Commissioners or Commissioners aforesaid are not in agreement, the orders transferring the case may, similarly, be passed by the Board or any such Director General or Chief Commissioner or Commissioner as the Board may, by notification in the Official Gazette, authorise in this behalf

(3) Nothing in sub-section (1) or sub-section (2) shall be deemed to require any such opportunity to be given where the transfer is from any Assessing Officer or Assessing Officers (whether with or without concurrent jurisdiction) to any other Assessing Officer or Assessing Officers (whether with or without concurrent jurisdiction) and the officers of all such officers are situated in the same city, locality or place.

(4) The transfer of a case under sub-section (1) or sub-section (2) may be made at any stage of the proceedings, and shall not render necessary the re-issue of any notice already issued by the Assessing Officer or Assessing Officers from whom the case is transferred.

Explanation- In Section 120 and this section, the word “case”, in relation to any person whose name is specified in any order or direction issued thereunder, means all proceedings under this Act in respect of any year which may be pending on the date of such order or direction or which may have been completed on or before such date, and includes also all proceedings under this Act which may be commenced after the date of such order of direction in respect of any year. “

Chapter XIV

Assessment in case of search or requisition.

153A. (1) Notwithstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, in the case of a person where a search is initiated under section 132 or books of account, other documents or any assets are requisitioned under section 132A after the 31st day of May, 2003, the Assessing Officer shall –

(a) issue notice to such person requiring him to furnish within such period, as may be specified in the notice, the return of income in respect of each assessment year falling within six assessment years referred to in clause (b), in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section 139;

(b) assessee or reassess the total income of six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted or requisition is made :

Provided that the Assessing Officer shall assess or reassess the total income in respect of each assessment year falling within such six assessment years:

Provided further that assessment or reassessment, if any, relating to any assessment year falling within the period of six assessment years referred to in this sub-section pending on the date of initiation of the search under section 132 or making of requisition under section 132A, as the case may be, shall abate.

(2) If any proceeding initiated or any order of assessment or reassessment made under sub-section (1) has been annulled in appeal or any other legal proceeding, then, notwithstanding anything contained in sub-section (1) or section 153, the assessment or reassessment relating to any assessment year which has abated under the second proviso to sub-section (1), shall stand revived with effect from the date of receipt of the order of such annulment by the Commissioner:

Provided that such revival shall cease to have effect, if such order of annulment is set aside.

Explanation: For the removal of doubts, it is hereby declared that,-

(i) save as otherwise provided in this section, section 153B and section 153C, all other provisions of this Act shall apply to the assessment made under this section;

(ii) in an assessment or reassessment made in respect of an assessment year under this section, the tax shall be chargeable at the rate or rates as applicable to such assessment year.”

Chapter XIV

Assessment of income of any other person.

153C (1) Notwithstanding anything contained in section 139, section 147, section 149, section 151 and section 153, where the Assessing Officer is satisfied that any money, bullion, jewellery or other valuable article or thing or books of account or documents seized or requisitioned belongs or belong to a person other than the person referred to in section 153A, then the books of account or documents or assets seized or requisitioned shall be handed over the the Assessing Officer having jurisdiction over such other person and that Assessing Officer shall proceed against each such other person and issue such other person notice and assess or reassess income of such other person in accordance with the provisions of Section 153A:

Provided that in case of such other person, the reference to the date of initiation of the search under section 132 or making of requisition under section 132A in the second proviso to [sub-section (1) of section 153A shall be construed as reference to the date of receiving the books of account or documents or assets seized or requisitioned by the Assessing Officer having jurisdiction over such other person.]

(2) Where books of account or documents or assets seized or requisitioned as referred to in sub-section (1) has or have been received by the Assessing Officer having jurisdiction over such other person after the due date for furnishing the return of income for the assessment year relevant to the previous year in which search is conducted under section 132 or requisition is made under section 132A and in respect of such assessment year –

(a) no return of income has been furnished by such other person and no notice under sub-section (1) of section 142 has been issued to him, or

(b) a return of income has been furnished by such other person but no notice under sub-section (2) of section 143 has been served and limitation of serving the notice under sub-section (2) of section 143 has expired, or

(c) assessment or reassessment, if any, has been made, before the date of receiving the books of account or documents or assets seized or requisitioned by the Assessing Officer having jurisdiction over such other person, such Assessing Officer shall issue the notice and assess or reassess total income of such other person of such assessment year in the manner provided in section 153A. “

Validity of order under Section 127 of the Act

In the opinion of this Court, while it is true that Section 127 of the Act requires the competent authority to record his reasons for transferring any case from one Assessing Authority to another, such reasons apparently appear to have been recorded and communicated to the petitioner vide Annex-3 dated 10.06.2009, namely, that such transfer of case from Sriganganagar to Bikaner was required for coordinated investigation as the petitioner trust was a case closely connected with the search, since the search was conducted under the warrant of authorization under Section 132 of the Act purportedly issued in the name of three individuals (S/Sh. Shyam Sunder Tantia, Jagdish Rai Tantia and Anil Tantia). There is no dispute from the side of the petitioner-Trust that these persons against whom warrant under Section 132 of the Act was issued and executed, a search was carried-out at their place, are family members and are related with the petitioner-Trust being its trustees. On the other hand, Revenue has contended that even name of petitioner-Trust was mentioned in the search warrants. Therefore, it cannot be said that there was no reasons for transfer of the proceedings from Sriganganagar to Bikaner. Adequate opportunity was given to the petitioner to raise its objections against such transfer, but except filing a preliminary reply, Annex-2 dated 02.06.2009, in which the assessee really asked for further reasons in order to enable him to file appropriate objections, no such objections were really filed by it even though the assessee was specifically called upon to do so vide Annex-3 dated 10.06.2009 in which reasons for such transfer were even communicated to the assessee-Trust.

Therefore, in absence of any objection, order of transfer (Annex-4) under Section 127 of the Act, passed by Commissioner of Income Tax on 07.07.2009, cannot be held to be falling foul with the provisions of Section 127 (1) of the Act. In fact, under the said order, all the proceedings of all the family members of person searched under Section 132 of the Act of 1996 including, the petitioner-Trust, whose name was mentioned in such warrants under Section 132 of the Act also and, therefore, all connected cases were transferred from Sriganganagar to Bikaner to one Assessing Authority, and as many as 15 cases of the said family, were transferred by the learned Commissioner of Income Tax from Sriganganagar to Bikaner for coordinated investigation and administrative convenience. It is not in dispute that said Commissioner had power to transfer the proceedings of assessment from one range to another under his charge as per the provisions of Section 127 of the Act. Therefore, the said order under Section 127 of the Act is found to be perfectly valid and legal.

The following case laws in this regard may be noticed herein:

In General Exporters v. CIT [2000] 241 ITR 845 / [1999] 104 Taxman 566 (Mad.), the transfer of the case of the firm from Madras to New Delhi to facilitate co-ordinated investigation has been held to be valid one.

In Arti Ship Breaking v. DIT [2000] ITR 333/ 110 Taxman 457 (Guj), a case was transferred from Bhavnagar to Rajkot for administrative reasons after considering the objections of the assessee. The reason, which were just and reasonable, were recorded in the file. It has been held that the transfer was valid even though the order of transfer and reasons therefor were communicated to the assessee in the block assessment proceedings.

Section 127 only provides for an administrative arrangement authorizing, inter alia, Chief Commissioners to transfer the files from one Officer to another for better and more efficient handling of the files. When group cases are handled, it is always desirable to have one Officer handling all the assessments together so that related transactions can be better appreciated by the Officer. [Redwood Hotel (P.) Ltd. v. Chief CIT, [2003] 259 ITR 19 1/[2002] 125 Taxman 644 (Ker). In the facts of that case, the order of transfer of the cases of assessees belonging to a group in order to facilitate search operations has been held to be valid. Also see, One-up shares & Stock Brokers (P.) Ltd. v. R.R. Singh, CIT [2003] 262 ITR 275 / 129 Taxman 687 (Bom.).

Necessity of centralisation of cases for co-ordinated and effective investigation cannot to be said to be an invalid ground for transferring the cases belonging to a particular group to a single Assessing Officer [Rathi & Co. v. Union of India [2004] 267 ITR 295 / 137 Taxman 300 (Gau.).

The Hon’ble Supreme Court in the case ofK.P. Mohammed Salim v. CIT [2008] 300 ITR 302/ 169 Taxman 465 , has held as under:

“9. An order of transfer is passed for the purpose of assessment of income. It serves a larger purpose. Such an order has to be passed in public interest.

Only because in the said provision the words “any case” has been mentioned, in our opinion, would not mean that an order of transfer cannot be passed in respect of cases involving more than one assessment year.

It would not be correct to contend that only because Explanation appended to S.127 refers to the word ‘case’ for the purpose of the said section as also s. 120, the source of power for transfer of the case involving block assessment is relatable only s. 120 of the Act. It is a well-settled principle of interpretation of statute that a provision must be construed in such a manner so as to make it workable. When the IT Act was originally enacted, Chapter XIV-B was not in the statute book. It was brought in the statute book only in the year 1996.

The power of transfer is in effect provides for a machinery provision. It must be given its full effect. It must be construed in a manner so as to make it workable. Even s. 127 of the Act is a machinery provision. It should be construed to effectuate a charging section so as to allow the authorities concerned to do so in a manner where for the statute was enacted. “

Therefore, the challenge to order under Section 127 of the Act dated 07.07.2009 must fail and accordingly to this extent the present petition is dismissed.

Validity of Notice under Section 153A of the Act

Now coming to the validity of the notice under Section 153A (a) of the Act, Annex-5 dated 24.08.2009, firstly, it is observed that said notice is a mere notice, which cannot be said to have been issued with a patent lack of jurisdiction with the said authority issuing the same. The notice only calls upon the petitioner to prepare and file its true and correct returns of particular assessment year 2008-09 in the prescribed form. Nothing could prevent the petitioner-Trust from filing such return as envisaged and called upon under this notice, even if it had filed its return of income earlier for said assessment year 2008-09 before the regular Assessing Authority at Sriganganagar. The assessee obviously did not comply with the notice, but challenged the same before this Court, straightway by way of present writ petition even though objections vide Annex-8 dated 07.09.2010 and Annex-9 dated 14.09.2010 were pending and were not yet decided, therefore, in the opinion of this Court, the present writ petition is premature one, as no final order has been passed against the assessee so far.

Prior to the concept of block assessment introduced by Finance Act, 1995, there was no special provision under the Act for making assessment or reassessment of any other person with respect to whom, books of account, documents or assets were found during search of any person. Under such situation, normal provisions of the Act for reopening of the case relating to other persons were applicable.

As per Finance Act, 1995, with the introduction of concept of block assessment, special provision to assess undisclosed income of any other person was legislated under Section 158BD.

As per Finance Act, 2003, concept of block assessment was abolished and new procedure for assessment and reassessment in search cases was introduced. Special procedure for assessment or reassessment of preceding six years and the year of search in the case of any other person have been introduced by way of introduction of section 153C. Section 153C has been introduced to make assessment or reassessment of any other person in the same manner as assessment or reassessment of the person searched, if any books of account, documents or assets seized during search belong to the some other person.

In the case of search of a person, undoubtedly proceedings under Section 153A of the Act can be taken against him but if any incriminating material suggesting undisclosed income is found and seized which does not belong to the person searched but to some other person, in such situation, such other person has to be assessed with respect to such undisclosed income. The provisions of section 153A and 153C are not only to make assessment of undisclosed income but to make assessment or reassessment of the total income including the previously disclosed income as well as the undisclosed income found as a result of search.

Here, in the present case, the assessee-Trust has been called upon to prepare and file its true return of income for assessment year 2008-09 and further it is not before this Court as to whether necessary satisfaction has been recorded or not. Even though Revenue was granted time by this Court on 26.10.2010 for this purpose but it has not produced the said recorded satisfaction. However, the assessee could very well raise this issue before the Assessing Officer himself and if such satisfaction is not recorded or no such satisfaction is communicated to the assessee, the assessee has its remedy under the law before the appellate forums and courts of law. In fact, the assessee has already made representations, Annex-8 & 9, in this regard which are yet to be decided by respondent. More over, it has to be noticed that there is no specific time limit given in Section 153A and 153C for recording of such reasons, though it is believed that such reasons have to be recorded before the action is initiated and it might have been done so in the present case also but this Court cannot be called upon to make fishing and roving enquiry into the same and it was for the petitioner-Trust (assessee) itself to call upon the Assessing Officer to make such recorded satisfaction available to it. The representations of assessee, Annex-8 dated 07.09.2010 and Annex-9 dated 14.09.2010, are yet to be decided. More over, there is no case of there being a different Assessing Officers for the petitioner Trust and the individual family members since all the assessment proceedings for all connected assessees of said family and the present petitioner-Trust, stand transferred under a valid and legal order under Section 127 of the Act vide Annex-4 dated 07.07.2009 to the respondent No. 1 Assistant Commissioner (Central), Bikaner.

The legal position in this regard settled by the Hon’ble Supreme in the case of G.K.N. Driveshafts (India) Ltd. v. ITO [2003] 259 ITR 19/[2002] 125 Taxman 963 in relation to reassessment proceedings and powers under Sections 147 and 148 of the Act which apply mutatis-mutandis to search and consequential assessment proceedings also in the following terms:

“When a notice under section 148 of the Income-tax Act, 1961, is issued, the proper course of action for the noticee is to file the return and, if he so desires, to seek reasons for issuing the notices. The Assessing Officer is bound to furnish reasons within a reasonable time. On receipt of reasons, the noticee is entitled to file objections to issuance of notice and the Assessing Officer is bound to dispose of the same by passing a speaking order.

On receiving notices under section 148 the appellant filed the returns. The appellant also received notices under section 143 (2) calling for further information on certain points in connection with the returns. Thereupon the appellant filed writ petitions challenging the notices. The High Court dismissed the writ petitions holding that the petitions were premature and the appellant could raise its objections to the notices by filing reply to the notices before the Assessing Officer (see, e.g., [2002] 257 ITR 702). The appellant preferred appeals and the Supreme Court dismissed the appeals, observing that since the reasons for reopening of assessments under section 148 had been disclosed in respect of five assessment years, the Assessing Officer had to dispose of the objections, if filed, by passing a speaking order before proceeding with the assessments for those years. “

18. The legal position is that the appellate Tribunal of Income Tax can also look into the validity and propriety of the search under Section 132 of the Act and, therefore, the Assessee-Trust does have effective alternative remedy in this regard, is also settled by the Division Bench of this Court inBadri Ram Choudhary v. ACIT [D.B. Appeal No.161/2011 – decided on 25.07.2011], relying upon previous decision of Division Bench in the case of CIT v. Smt. Chitra Devi [2009] 313 ITR 174/[2008] 170 Taxman 164 (Raj.), which has also been affirmed by the Hon’ble Supreme Court also by dismissal of SLP of Revenue in that case. The relevant portion of the aforesaid judgment is reproduced herein below for ready reference:

“As stated supra, the legal position viz. whether the Tribunal does have a power to decide the legality and propriety of the raid under Section 132 of the Act remains no longer res integra in the light of the judgment rendered in Chitra Devi’s case (2009) 313 ITR 174 (Raj.) which is upheld by the Supreme Court where S.L.P. filed by the Department was dismissed against the order of High Court (see 2009) 3131 I.T.R. (St)-28.

Accordingly and in the light of aforesaid discussion, we allow this appeal, set aside the impugned judgment and remand the appeal to the Tribunal for deciding the same afresh on merits strictly in accordance with law. While so deciding, the Tribunal would not only decide all the issues arising in the appeal on merits but would also be free to decide the issue relating to legality and validity of the raid challenged by the appellant after giving due opportunity to the Department to justify the raid proceedings conducted under Section 132 ibid.”

19. Chapter XIV of the Income Tax Act, 1961 dealing with the procedure for assessee comprising Section 139 to 158 of the Act deal with various provisions relating to filing of returns, enquiry, assessment, best judgment assessment, time limits etc. Sections 153A to 153D of the Act deal with assessment procedure in case of matter relating to search and seizure under the provisions of Section 132, 132B of the Act contained in Part C of Chapter XIII providing for income tax authority and powers of such authorities. The said Chapter relating to procedure for assessment and other provisions relating to appeals and revisions contained in Chapter XX comprises sections 246 to 269 of the Act. Thus the Act provides a complete mechanism for dealing with various assessments and remedial measures under the Income Tax Act.

20. It is true that extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India cannot be barred by any statutory provisions of any enactment of the Parliament or State legislatures as that is a power conferred on the superior courts of record as basic features of the Constitution of India providing for judicial review of legislations and executive actions or orders, which in the opinion of the Court, areultra vires and unconstitutional and illegal for other reasons. Thus, provisions of Income Tax Act enumerated above, neither curtail powers of this Court under Articles 226 and 227, nor they could have so curtailed any such powers but at the same time, the wide powers of this Court of extraordinary jurisdiction, namely, writ jurisdiction have to be exercised with circumspection and self-imposed discipline. It is not each and every action of the authorities created under the revenue laws or other public authorities, which are required to be examined or redressed by exercising writ jurisdiction of this Court. If only a case falls within the parameters found appropriate for exercise of such jurisdiction that such jurisdiction can be invoked for providing relief to the petitioner against arbitrary and illegal actions of the executive authorities as also ultra vires and unconstitutional legislations.

21. In the present case, nothing of this sort invokes the good conscience of this Court for exercising its wide discretionary powers under Articles 226 and 227 of the Constitution of India for quashing of the impugned notice under Section 153A of the Income Tax Act. In considered opinion of this Court, it would be premature to quash such a notice at this stage specially when objections of the assessee in this regard vide Annex-8 and 9 are yet to be decided and the petitioner has made a prayer to this effect also in the writ petition.

22. On account of an interim order granted by a coordinate bench of this Court on 26.10.2010 in the present case, the proceedings against the petitioner-Trust in pursuance of the impugned notice dated 24.08.2009 under Section 153A and consequential notices under Section 142 (1) of the Act were stayed, since the revenue asked for sometime to produce the relevant record, but it was not so produced, and thus proceedings are apparently not continued under the orders of this Court for last about one year. By not allowing Revenue authorities to even proceed with the matter in pursuance of the impugned notice under Section 153A of the Act particularly even to decide the objections of the petitioner itself, does not subserve the object of these provisions enacted to prevent black money and bringing the same to book by framing assessments against not only persons searched but other persons against whom material is found during such search.

23. The interest of justice would be served by now directing the respondents to decide the objections of the petitioner-Trust within one month from today and allow the assessee-Trust to proceed further in the matter.

24. Accordingly, this writ petition is found to be premature as far as challenge to notice under Section 153A of the Act is concerned. The interim order dated 26.10.2010 is vacated. The order under Section 127 of the Act dated 07.07.2009 is upheld. The respondent No.1, Assistant Commissioner may decide the objections of the assessee-Trust in pursuance of notice Annex-5 dated 24.08.2009 within one month from today and the assessee-Trust will be free to proceed further in accordance with law.

25. The writ petition is accordingly dismissed. Costs easy.

[Citation : 355 ITR 226]

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