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March 18, 2023

Petition is premature because the petitioner’s objections need to be resolved by the relevant authority

Petition is premature because the petitioner’s objections need to be resolved by the relevant authority

Fact and Issue of the case

The petition under Article 226 of the Constitution of India challenges the notice dated 30.03.2021 issued by the respondent under Section 148 of the Income Tax Act (hereinafter referred to as ‘the Act’) seeking to reopen the income tax assessment for the assessment year 20 15-16.

The petitioner is engaged in the business of trading in shares who has filed return of income for the year under consideration declaring the total income as nil on 21.09.2015. The notice dated 30.03.202 1 was received seeking to reopen the case of the petitioner. It is the say of the petitioner that the reasons for reopening had been received on 28.05.2021 which were broadly on the count that the petitioner has claimed bogus LTCG on penny stock transaction and the petitioner has claimed the amount of Rs. 90,37,264/- on penny stock transaction during the year under consideration.

The objections have been raised on 14.06.2021, however, they were not disposed of and the patience of the petitioner had veered off, therefore, he approached this Court seeking to challenge the impugned notice itself with the following prayers:-

(a) quash and set aside the impugned notice at ANNEXURE “A ” to this petition;

(b) pending the admission, hearing and final disposal of this petition, to stay the implementation and operation of the notice at ANNEXURE “A” to this petition and stay the further proceedings for the Assessment Year 2015-16;

(c) any other and further relief deemed just and proper be granted in the interest of justice;

(d) to provide for the cost of this petition.” 3. This Court (Mr. J.B.Pardiwala, J. as his lordship then was and Ms. Nisha M. Thakore, J.) issued notice on 08.03.2022 granting protection to the petitioner in terms of para 7(b).

On the returnable date, learned Senior Standing Counsel Mr. Varun Patel appeared and filed the basic reply where he questioned the very maintainability of this petition. According to him, objections have not as yet been disposed of, the petition is premature. All other averments, according to this reply, are not sustainable.

We have heard learned Senior Advocate Mr. Tushar Hemani assisted by learned advocate Ms. Vaibhavi Parikh for the petitioner and learned Senior Standing Counsel Mr. Varun Patel with learned Standing Counsel Mr. Dev Patel for the department.

According to learned Senior Advocate Mr. Hemani, it is not unknown to this Court that pending the petition, objections can be directed to be disposed of as it is a group of the matters where there is hardly any possibility of the respondent taking any other stand while disposing of objections. This was resisted by the other side.

Observation of the court

We noticed that in today’s date, this Court has disposed of two of the matters being Special Civil Application Nos. 4900/2022 and 4896/2022 wherein the assessment made is nil and they were the part of the very group, therefore, nothing can be presumed in advance and the stage of disposing of the objections will need to be made available to the respondent authority.

Petition being prematured, this Court chooses not to entertain it at this stage. Let the disposal on the strength of the objections raised by the petitioner be made by the authority concerned within two weeks from the date of receipt of copy of this order, on availing opportunity in accordance with law.

If any adverse order is passed, no effect be given to the same by the Revenue for two weeks. The petitioner will be at liberty to take legal course within this period of two weeks, if it so chooses.

This Court has not expressed any view on the merits of the matter, it shall be decided on its own strength. Disposed of.


In the result, appeal of the assessee is allowed and ruled in favour of the assessee

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