WP/22920/2004 of M/s. Sha Pokaraj Suresh Kumar Jain, Vs Income Tax Officer, on 30 December 2004

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

(Special Original Jurisdiction)

THURSDAY, THE THIRTIETH DAY OF DECEMBERTWO THOUSAND AND FOUR

PRESENT

THE HON'BLE MR JUSTICE M.H.S. ANSARI

and THE HON'BLE MR JUSTICE ELIPE DHARMA RAO

WRIT PETITION NO : 22920 of 2004

Between:

M/s. Sha Pokaraj Suresh Kumar Jain, #7-1-653, Market Street,Secunderabad, rep. by its Partner Pokraj Suresh Kumar Jain.

..... PETITIONER

AND

1 Income Tax Officer, Ward-5, (11) Circle-5, Hyderabad.

2 Tax Recovery Officer, Range-II, Hyderabad.

3 The Dy. Commissioner of Income Tax ( Appeals)-II, Hyderabad.

4 The Commissioner of Income Tax, AP-I, Hyderabad.

5 The Income Tax Appellate Tribunal, Hyderabad Bench, - "A", Hyderabad.

.....RESPONDENTS

Petition under Article 226 of the Constitution of India prayingthat in the circumstances stated in the affidavit filed herein the HighCourt may be pleased to issue an appropriate writ/direction or order preferably a writ in the nature of Mandamus leading to the passing ofthe impugned order bearing No. GIR No. S-401/95-96, dt. 08.12.1995passed by the 1st respondent and set aside the same as illegal anduntenable while allowing the claim of the Partners remuneration withall consequential benefits including refund of the amount paid underprotest with interest and pass such other order or orders.

Counsel for the Petitioner:MR.A.SITA RAMA RAO

Counsel for the Respondent No.: MR.B.NARASIMHA SARMA

The Court at the admission stage made the following :

O R D E R (Per MHSA,J)

Instant writ petition is filed questioning the order of the assessingauthority dated 8.12.2995, whereby the application filed by thepetitioner – assessee under Section 154 of the Income Tax Act, 1961(for brevity ‘the Act’), was rejected on the ground that there is nomistake apparent from the record to rectify the assessment madeunder Section 143 (1)(a) of the Act.

2. The appeal against the said order was filed by the petitioner herein on 25.2.1998, whereas the said order had been received by thepetitioner on 14.2.1996. The appeal was filed with a delay of morethan two years. The same was dismissed as time barred by theDeputy Commissioner of Income Tax (Appeals) by his order dated26.8.1998. Instead of preferring an appeal against the said order, thepetitioner chose to file a revision under Section 264 of the Act beforethe learned Commissioner of Income Tax. The same was dismissedas not maintainable and aggrieved against the same, petitioner filedan appeal before the learned Income Tax Appellate Tribunal, whichdismissed the appeal on the ground that Section 253 of the Act doesnot provide for right of appeal against the order passed under Section264 of the Act.

3. No valid ground is made out warranting interference with the saidorder by the authorities under challenge in the instant writ petition.The only submission made before us is that the petitioner is a ‘kiranamerchant’ and, therefore, could not take steps in time and should notbe denied the opportunity of being heard on merits. It was furthersubmitted that for the wrong advise of counsel, petitioner should notbe penalized.

4. Instant case is not one of mistake or wrong advise. Petitioner didnot file appeal against the order of the assessing authority rejectingthe application under Section 154 of the Act. It was only afterreminder was received from the Tax Recovery Officer that thepetitioner chose to prefer an appeal with a delay of two years. Sameis apparent from the application filed for condonation of delay (pageNo.23 of the material papers).

5. We accordingly find no ground to entertain the writ petition.

Same is accordingly dismissed at admission stage.

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M.H.S.ANSARI,J

-----------------------------

ELIPE DHARMA RAO,J

AVS

DATE:30.12.2004

To.