Court No. - 29
Case :- WRIT TAX No. - 1385 of 2018 Petitioner :- Sailendra Kumar Singh Chaudhary Respondent :- Union Of India And 2 Others Counsel for Petitioner :- Rahul Agarwal Counsel for Respondent :- S.S.C.,Ashish Agrawal
Hon'ble Pankaj Mithal,J. Hon'ble Ashok Kumar,J.
Heard Sri Rahul Agarwal, learned counsel for the petitioner and Sri Bharat Ji Agrawal, Senior Counsel assisted by Sri Ashish Agrawal for the Income Tax Department.
The petitioner has preferred this petition against the notice dated 26.03.2018 and the order dated 17.08.2018 (annexure-1 and 2 respectively to the writ petition).
The petitioner was served with the above notice dated 26.03.2018 under Section 148 of the Income Tax Act for the purpose of reassessment for the Assessment Year 2011-12. The objections of the petitioner against the said notice have been rejected by the impugned order dated 17.08.2018 and thus this writ petition has been preferred.
The submission of learned counsel for the petitioner is that the petitioner is a Karta of the joint family and that he has authorised one of his family members (nephew) to transfer one of the properties of the HUF, but instead he illegally transferred the property in question. The petitioner has not received any sale consideration in respect of the said property and that he had immediately filed a suit for the cancellation of the sale deed which is pending adjudication in the civil court since 2011.
In view of the above, the submission is that the petitioner cannot be saddled with any liability of capital gains which may authorise reassessment on that ground.
The question as to whether the power of attorney given by the petitioner was misused or was illegally utilised by the family member and whether the petitioner has received any sale consideration or not or any other such ancillary issues are all questions of fact which cannot be adjudicated in these proceedings rather have to be adjudicated upon if at all in the civil suit which is said to be pending.
In view of the aforesaid facts and circumstances, we are of the opinion that the assessment proceedings would not cause any prejudice to the petitioner and that the petitioner would have an opportunity to challenge the reassessment, if any in appeal, as provided under the provisions of the Act and in the said appeal, it will be open for him to question the jurisdiction aspect of the matter as well, we do not propose to exercise our extraordinary jurisdiction in the matter.
Accordingly, in view of the alternative remedy so available to the petitioner and the decision of the Apex Court in Commissioner of Income Tax and others Vs. Chhabil Dass Agarwal (2013 357 ITR 357 (SC)), we decline to intervene in the matter at this stage.
The writ petition is dismissed with no order as to costs.
Order Date :- 31.10.2018 Nirmal