Patna High Court
Bihar State Hydroelectric Power ... vs Union Of India on 24 January, 2024
Bench: Chief Justice, Rajiv Roy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.15002 of 2022
======================================================
Bihar State Hydroelectric Power Corporation Ltd. having it office at 2nd
Floor, Sone Bhawan, Bir Chand Patel Path, R Block More, Patna- 800001
through its Chief Engineer, Sri Rajeev Ranjan (Male, aged about 55 years),
Son of Govind Prasad Gain, Resident of A-98, Peoples Co-operative Colony,
Kankarbagh, Lohia Nagar, Sampatchak, District - Patna - 800020.
... ... Petitioner/s
Versus
National e-Assessment Centre Delhi.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 14930 of 2022
======================================================
Bihar State Hydroelectric Power Corporation Ltd. having it office at 2nd
Floor, Sone Bhawan, Bir Chand Patel Path, R Block More, Patna - 800001
through its Chief Engineer, Sri Rajeev Ranjan (Male, aged about 55 years),
Son of Govind Prasad Gain, resident of A- 98, People Co-operative Colony,
Kankarbagh, Lohia Nagar, Sampatchak, District - Patna - 800020.
... ... Petitioner/s
Versus
1. Union of India through the Secretary Ministry of Finance, Department of
Revenue, North Block New Delhi 110001.
2. National e-Assessment Centre, Delhi.
... ... Respondent/s
======================================================
Appearance :
(In Civil Writ Jurisdiction Case No. 15002 of 2022)
For the Petitioner/s : Mr. D.V.Pathy, Advocate
For the Respondent/s : Mr. Archana Sinha, Sr. SC. Income Tax Deptt.
(In Civil Writ Jurisdiction Case No. 14930 of 2022)
For the Petitioner/s : Mr. D.V.Pathy, Advocate
For the Respondent/s : Mr. Archana Sinha, Sr. SC. Income Tax Deptt.
======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE RAJIV ROY
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 24-01-2024
The petitioner is aggrieved with the order passed
on 20.04.2021, which is an assessment order, impugned in
Patna High Court CWJC No.15002 of 2022 dt.24-01-2024
C.W.J.C. No. 15002 of 2022. In C.W.J.C. No. 14930 of 2022,
impugn a penalty order which was passed based on the
assessment made. The challenge against the assessment order is
that it was an ex-parte order passed when the entire country
was reeling under COVID-19.
2. The learned counsel for the petitioner also points to
paragraph no. 9, where it was contended that the COVID-19
pandemic was raging all over the country. It is to be specifically
noticed that having stated so, the petitioner only states 'that due
to certain reasons beyond its control' (sic) it could not take
effective steps against the order of assessment without
specifying whether how the COVID-19 pandemic or the
lockdown had affected it. In fact, complete lockdown was only
in the year 2020, and later the lock down was localized which
orders were also passed by the district administration. Nothing
to that end is produced before this Court and in that
circumstance, we do not find any reason to interfere with the
order on the basis of the pandemic.
3. As far as the challenge to Annexure-3 order, there
are two remedies of appeal provided under the Income Tax Act,
1961; (i) before the first Appellate Authority, the Commissioner
and then (ii) the Income Tax Appellate Tribunal. Admittedly, the
Patna High Court CWJC No.15002 of 2022 dt.24-01-2024
provision provides a time of thirty days for filing the appeal and
also provides for condonation of delay on satisfactory
explanation being provided. This has to be considered along
with the contention raised by the petitioner that he was not able
to challenge the order of assessment 'due to certain reasons
beyond its control' (sic) and the further time granted by the
Hon'ble Supreme Court in Suo Motu Writ Petition (C) No. 3
of 2020. The Hon'ble Supreme Court had suspended the
limitation in all cases during the COVID-19 period and finally
had passed an order dated 10.01.2022 directing that limitation
would revive and any order passed in the meanwhile can be
challenged within 90 days from 28.02.2022. Hence, the
petitioner could have filed an appeal from the assessment order
on or before 28.05.2022 i.e., three months, even without a delay
condonation application. Though, the Hon'ble Supreme Court
had provided 90 days across the board, to all proceedings, the
petitioner did not take up the challenge even then.
4. The petitioner has filed the above writ petition
itself on 02.11.2022 almost 5 months after the time granted by
the Hon'ble Supreme Court expired. There is also no
explanation as to why, the petitioner did not approach the
Appellate Authority within the time provided by the Hon'ble
Patna High Court CWJC No.15002 of 2022 dt.24-01-2024
Supreme Court.
5. In the above circumstances, we find absolutely no
reason to interfere with the assessment order in the writ petition
filed.
7. In C.W.J.C. No. 14920 of 2022, the order impugned
is one in which penalty was imposed which is dated 07.02.2022.
8. The learned counsel for the petitioner submits that
these is no cause for penalty and if there is excessive quantum
fixed than that provided in the statute. Again these are matters
which could be agitated before the Appellate Authority, which
the petitioner has not done even within the time permitted by the
Hon'ble Supreme Court. What was observed about the
assessment order equally applies to the penalty orders.
9. Having said that there could be no interference
caused in the writ petitions, we notice that the provision under
the Income Tax Act, 1961, does not provide for any specific
period within which a delayed appeal has to be filed. The statute
provides the power on the Commissioner Appeals to look into
the grounds for delay and if satisfied admit the appeal and
consider it on merits.
11. In such circumstances, it is only proper that we
direct the petitioner to file an appeal with a delay condonation
Patna High Court CWJC No.15002 of 2022 dt.24-01-2024
application, the delay having to be explained from 28.05.2022.
12. We also make it clear that, since, the writ petition
was filed on 01.11.2022, the petitioner would not be called upon
to explain the delay after 01.11.2022, which is only because of
the pending writ petition. We make it clear that we have not said
anything about the merits of the matter nor on the delay, the
satisfaction of which is exclusively with the Commissioner of
Appeals.
13. The writ petitions are disposed of with the above
directions.
14. The petitioner would file an appeal within three
weeks' from today in which case, the above directions would
apply squarely.
(K. Vinod Chandran, CJ)
( Rajiv Roy, J)
aditya/sudha
AFR/NAFR
CAV DATE
Uploading Date 26.01.2024
Transmission Date
