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Meeraben P. Desai Vs. First Ito and anr. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtMumbai High Court
Decided On
Case NumberMisc. Petition No. 863 of 1978
Judge
Reported in(1982)27CTR(Bom)206
ActsIncome Tax Act, 1961 - Sections 146; Constitution of India, art. 226
AppellantMeeraben P. Desai
RespondentFirst Ito and anr.
Excerpt:
- - these facts clearly establish that the grievance of the petitioner in the present petition against the ex-parte assessment order dt. 4. in view of the facts set out hereinabove, this petition must fail and the rule is discharged with costs......by the assessee, the relief sought was granted by order the act came to be granted, the ex-parte assessment order dt. 6-4-1978 passed u/s 144 of the act was automatically set aside. the petitioner independently of filing the present petition in this court to challenge the assessment order had filed an appeal to the appl. authority but as favourable order to the assessee was passed in the proceedings u/s 146 of the act, the appeal came to be dismissed as infructuous. the assessee curiously carried second appeal before the tribunal but that also rightly ended with an order that it is infructuous. these facts clearly establish that the grievance of the petitioner in the present petition against the ex-parte assessment order dt. 6-4-1978 no longer survives because that order itself.....
Judgment:

M.L. Pendse, J.

1. By this petition filed u/Art 226 of the Constitution of India, the petitioner is challenging the legality of assessment order in respect of the Asst. yr. 1979-80 along with the demand notice and the notice to show cause as to why the penalty should not be levied.

2. The assessment Order was passed ex-parte by the ITO on 6-4-1978. After the petitioner filed this petition in this Court on 5-7-1978 certain facts have transpired which makes the petition redundant. After the assessment order was passed on 6-4-1978, the petitioner filed an application u/s 146 of the IT Act for setting aside the ex-parte order and for a fresh assessment. The ITO rejected the application but in an appeal preferred by the assessee, the relief sought was granted by order the Act came to be granted, the ex-parte assessment order dt. 6-4-1978 passed u/s 144 of the Act was automatically set aside. The petitioner independently of filing the present petition in this Court to challenge the assessment order had filed an appeal to the Appl. authority but as favourable order to the assessee was passed in the proceedings u/s 146 of the Act, the appeal came to be dismissed as infructuous. The assessee curiously carried second appeal before the Tribunal but that also rightly ended with an order that it is infructuous. These facts clearly establish that the grievance of the petitioner in the present petition against the ex-parte assessment order dt. 6-4-1978 no longer survives because that order itself stood set aside in view of the relief under application u/s 146 of the Act.

3. With this back ground, I enquired from the ld. counsel appearing on behalf of the petitioner as to how the petition would survive and though the ld. counsel realised it, he sought adjournment for obtaining instructions from the petitioner. In my judgment, no instructions are required from the petitioner. Accordingly, I declined to grant adjournment to the ld. counsel.

4. In view of the facts set out hereinabove, this petition must fail and the rule is discharged with costs.


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