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CA/3775/2011 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION - FOR STAY No. 3775 of 2011
In
SPECIAL
CIVIL APPLICATION No. 8828 of 2009
=========================================
THE
GREEN ENVIRONMENT SERVICES CO-OPERATIVE SOCIETY LIMITED -
Petitioner(s)
Versus
INCOME
TAX OFFICER (OSD) - Respondent(s)
=========================================
Appearance :
MR
TUSHAR P HEMANI for
Petitioner
MRS MAUNA M BHATT for
Respondent
=========================================
CORAM
:
HONOURABLE
MS.JUSTICE HARSHA DEVANI
and
HONOURABLE
MS.JUSTICE BELA TRIVEDI
Date
: 31/03/2011
ORAL
ORDER
(Per
: HONOURABLE MS.JUSTICE HARSHA DEVANI)
By
this application, the applicant seeks stay of the operation and
implementation of notice dated 02.02.2011 issued by the respondent
under section 274 read with section 271(1)(c) of the Income Tax Act,
1961 (the Act) for assessment year 2003-2004.
Mr.Tushar
P. Hemani, learned advocate for the applicant has submitted that
this Court has, vide order dated 21.12.2009 passed in Special Civil
Application No.8828 of 2009, permitted the assessment proceedings to
be continued but has directed that the final order will not be
communicated to the petitioner till the final disposal of the
petition. It is submitted that in the circumstances, it was not
permissible for the respondent to initiate proceedings under section
271(1)(c) of the Act.
This
Court has also heard Mr.M.R.Bhatt, learned Senior Advocate appearing
on behalf of the respondent.
The
record of the case indicates that vide order dated 30.9.2009, this
Court had adjourned the matter to 02.11.2009 and had granted interim
relief to the effect that in the meantime, the assessment
proceedings may be continued, but the final order will not be
communicated to the petitioner till the next date. The said interim
relief was continued from time to time and came to be confirmed vide
order dated 21.12.2009.
Despite
the aforesaid position, the respondent has vide notice dated
02.02.2011 initiated proceedings under section 274 read with section
271(1)(c) of the Act. On a plain reading of the said notice, it is
apparent that the respondent is well aware of the order passed by
this Court directing the Department not to serve the final order of
reopened assessment for assessment year 2003-04. However, on the
specious plea that as per the information available with the said
office, no condition has been laid down by this Court in respect of
initiation and completion of penalty proceedings, the respondent has
initiated the said proceedings.
Once,
the Court had restrained the respondent from communicating the final
assessment order to the petitioner, it was not permissible for the
respondent to initiate proceedings under section 274 read with
section 271(1)(c) of the Act in connection with the said assessment
order. In the circumstances, the proceedings initiated by issuance
of notice dated 02.02.2011 are required to be stayed.
It
appears that the penalty proceedings may have been initiated by the
respondent on the apprehension that the proceedings may become
barred by limitation. However, since the respondent has been
restrained from communicating the final assessment order to the
petitioner, the bar of limitation would not come in the way of the
respondent in case the petitioner does not succeed in the petition.
In
the light of the aforesaid discussion, the application is allowed.
Pending the final hearing of Special Civil Application No.8828 of
2009, the operation and implementation of the impugned notice dated
02.02.2011 issued under section 274 read with section 271(1)(c) of
the Act by the respondent at Annexure “C” to the
application, is hereby stayed.
The
application stands disposed of accordingly, with no order as to
costs.
[HARSHA
DEVANI, J.]
[BELA
TRIVEDI, J.]
parmar*
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