IN THE HIGH COURT OF JUDICATURE AT PATNA
MISC. APPEAL No.339 of 2009
WITH
INTERLOCUTORY APPLICATION No. 524 of 2010
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MURRAH LIVI STOCK AGENCY THROUGH ITS PARTNER
SANDEEP MALLICK
Versus
DEPUTY COMM.OF INCOME TAX
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Appearance :
For the Appellant: Dr. Krishna Nandan Singh, Senior Advocate with
Mr. Kamal Deo Sharma, Advocate
For the Respondent: Mrs. Archana Sinha, Advocate
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE JYOTI SARAN
ORAL ORDER
(Per: HONOURABLE THE CHIEF JUSTICE)
6. 20.9.2010. Interlocutory Application No. 524 of 2010: –
This application under Section 5 of the
Limitation Act is made by the appellant-assessee for
condonation of delay of one year four months and 19
days occurred in filing the above Miscellaneous Appeal.
Learned Advocate Mrs. Archana Sinha has
appeared for the respondent department. She has
contested the application. She has submitted that the
delay is deliberate.
It transpires that at the time the impugned
order by the Income Tax Appellate Tribunal was made
on 22nd June 2007, the Miscellaneous Appeal No. 266 of
2004 in respect of the same assessment year was pending
before this Court. After decision in the Miscellaneous
Appeal was rendered on 28th November 2007 the
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assessee approached the Hon’ble Supreme Court. After
the matter before the Hon’ble Supreme Court was
withdrawn on 16th January 2009 with liberty to file
appeal before the High Court, time was consumed in
reconstructing the papers as averred in paragraph 7 of the
application.
We are unable to accept that the delay in
question was deliberate. Definitely the assessee did not
stand to gain by delaying the matter nor the assessee was
indolent.
We are of the opinion that the appellant has
made out sufficient cause for condoning the delay. The
delay in filing the Miscellaneous Appeal is condoned.
The Interlocutory Application stands
disposed of.
Miscellaneous Appeal No. 339 of 2009: –
The appeal be posted for hearing under
Order 41 Rule 11 C.P.C. on the following questions of
law and on the questions of law which may be raised at
the time of hearing.
(i) Whether the Tribunal can justify and
sustain the action of the Assessing
Officer under Section 147 of the Act in
having reason to believe that income
liable to tax had escaped assessment
solely on basis of lodging of First
Information Report in which the
Appellant had not even been named, on
the ground that public opinion, however
uninformed, had a bearing on his mind
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and that the Assessing Officer was under
obligation to take note of public opinion,
however uninformed, and Act?
(ii) Whether or not ‘reason to believe’ to
justify action under Section 147 and 148
of the Act can be based on mere omnibus
allegations made in and First Information
Report unsubstantiated by any prima
facie credible information or any
materials in support of it and bereft of
even rudimentary details of such
allegations?
(iii) Whether or not the omnibus allegations in
a First Information Report, not
substantiated against the Appellant even
after lengthy investigations by the
Central Bureau of Investigations, as
evident from the Charge Sheet dated
17.1.2000 submitted in RC 55(A)/96 Pat
not naming the Appellant or its partners
as accused sent up for trial, can be the
basis for the Assessing Officer and the
Ld. Tribunal to justify order under
Section 147 of the Act against the
Appellant and to sustain such orders
against it?
(iv) Whether or not the Ld. Tribunal is
justified to finally conclude and uphold
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action under Section 147 of the Act and
an assessment of income under Section
143(3)/147 of the Act made merely on
the basis of unproven and
unsubstantiated allegations made in the
First Information Report without holding
any independent enquiry whatsoever or
an iota of any evidence being brought on
record assuming the Appellant guilty,
even after the Police Investigation
concluded without finding anything
against the Appellant?
(v) Whether or not notice under Section 148
of the Act is contrary to and in violation
of the provisions of Section 149 of the
Act and as such void and barred as it has
admittedly been issued more than eight
years after the end of the relevant
assessment year and the Order under
Section 147 does not state that the
income chargeable to tax which had
escaped assessment was amounting to
Rs.1,00,000/- or was likely to amount of
Rs.1,00,000/- or more for that year?
(vi) Whether or not, the Ld. Tribunal has
acted in accordance with law in coming
to conclusions for Assessment year in
question on the basis of facts relevant to
subsequent Assessment year?
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(vii) Whether or not the acts of the omission or
commission of others can be held against
the appellants and action/assessment
under Section 147 of the Act taken
against the Appellants on that basis?
(viii) Whether or not provisions of Section 147
of the Act postulates a rational and
intelligible nexus between the reason and
the belief emanating from the said reason
being based on some material and not
mere pretence for issuance of notice
under Section 148 of the Act?
(ix) Whether the Ld. Tribunal in disposing of
the appeal in the manner done committed
gross error leading to miscarriage of
justice in failing to consider and decide
whether in case of a particular trade,
albeit an illegal one, the norms and usual
expenses of that business are applicable
and allowable or not?
(x) Whether the Ld. Tribunal was justified or
not in not considering and deciding
objectively whether the stand of the
Revenue that the onus of proof to prove
expenses, even which had already been
proved after due enquiries during regular
assessment under Section 143(3) of the
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Act, lay on the Appellant and that he was
required to again produce the letters of
confirmation or purchases and expenses
even after the long lapse of time ignoring
the confirmations on record?
(xi) Whether the Ld. Tribunal erred in failing
to appreciate that validity of order under
Section 147 of Act and Notice under
Section 148 of the Act are to be judged
on basis of records/information available
with the Assessing Officer at the time of
passing of such order/issuance of such
notice and not on basis of subsequent
orders passed by him?
(xii) Whether or not the materials and
evidence brought on record and duly
verified and found correct earlier remains
part of the records during proceedings
under Section 143(3)/147 of the Act?
(R.M. Doshit, CJ)
(Jyoti Saran, J)
Pawan/-