Badri Ram Choudhary vs Assistant Commissioner of Income Tax

Heard on the question of admission. The appeal is admitted on the following substantial question of law : Whether the Tribunal was justified in holding that it cannot examine the legality and correctness of the raid conducted under s. 132 of the Act because the very issue is pending before the High Court at the instance of the appellant assessee in Writ Petn. No. 5626 of 2005 ?

Learned standing counsel for the Revenue is requested to accept the notice on behalf of the Department who has accepted the notice. A copy of the memo of appeal is served upon the counsel.

Since the issue involved in the appeal is short and hence with the consent of learned counsel for the parties the appeal is heard finally today itself in motion hearing because keeping it pending for orders is not going to serve anybody''s purpose.

This is appeal filed by appellant of IT(SS)A No. 55/Jd/2006 under s. 260A of the IT Act against an order dt. 29th Jan., 2009 [reported as Badri Ram Choudhary vs. Asstt. CIT(2010) 128 TTJ (Jd) 339 : (2010) 34 DTR (Jd) 335--Ed.] passed by the learned Tribunal in aforementioned appeal.

We need not burden our order by detailing more facts because in the light of the substantial question of law framed it is not considered necessary.

The issue arises out of block period 1st April, 1996 to 6th Feb., 2003 and has travelled to this Court from AO to first Tribunal and then to this Court.

As stated supra, the assessee challenged the legality and correctness of the raid not only before the Tribunal but also by filing a writ petition before this Court being Writ Petn. No. 5626 of 2005 which is pending consideration.

It is due to this reason when the appeal out of which this appeal arises came up before the Tribunal it was rightly observed it cannot go into the question because it is sub judice before the High Court in a writ petition filed by the appellant (assessee). The appeal was therefore decided de hors the issue of raid on several other issues.

Learned counsel for the appellant has now submitted that they do not wish to prosecute the writ petition in the High Court and hence they may be allowed to withdraw the writ petition with a liberty to raise and challenge the legality and propriety of the raid before the Tribunal in the appeal out of which this appeal arises by remanding the appeal to Tribunal. Learned counsel submits that they wish to challenge the legality and validity of the raid regardless to the forum be that in writ or appeal. It was also his submission that the issue with regard to legality and validity of raid can now be gone into by the Tribunal in the light of the decision of this Court reported in Commissioner of Income Tax Vs. Smt. Chitra Devi Soni, wherein this Court has held that Tribunal does have a power to examine such question.

Learned counsel for the respondent fairly submitted that looking to the legal position and the fact that Department''s rights are kept intact in defending the legality and propriety of the raid, such a course can be permitted while deciding this appeal.

Having heard learned counsel for the parties and on perusal of the record of the case, we are inclined to allow this appeal and while setting aside of the impugned order, remand the case to the Tribunal for deciding the appeal afresh on merits including the question of legality and validity of the raid conducted under s. 132 ibid.

In our view, once the appellant seeks withdrawal of the writ petition filed by the appellant wherein the challenge was laid to the legality and propriety of the raid, then they can be permitted, to raise and challenge the legality of the raid before the Tribunal because the purpose is to invite finding from competent Court of law on the issue as to whether the raid is legal or not ? Though Tribunal rightly recorded a finding that it cannot go into the question because the issue is pending before the High Court but now in the light of the submissions made by the appellant''s counsel seeking withdrawal of the writ petition, the Tribunal is now entitled and competent to examine the legality and propriety of the raid in an appeal filed by the appellant out of which this appeal arises. This being a question partly relating to facts and law cannot be examined for the first time by this Court under s. 260A ibid in this appeal and it is for this reason that appeal has to be sent back to the Tribunal for its decision on merits along with other issues.

As stated supra, the legal position viz. whether the Tribunal does have a power to decide the legality and propriety of the raid under s. 132 of the Act remains no longer res Integra in the light of the judgment rendered in Chitra Devi''s case (supra) which is upheld by the Supreme Court where SLP filed by the Department was dismissed against the order of High Court [see (2009) 313 ITR (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 s. 132 ibid. Let the appeal be now decided by the Tribunal within a period of six months. Parties are directed to file copy of the order before the Tribunal within a period of two weeks to enable the Tribunal to fix the date of hearing of the appeal.