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Judgment
Prakash Tatia, J.—Heard learned counsel for the petitioner.
In all these three matters having the identical facts and grievance the common order in passed.
The facts in all the cases reveal that the respondent No. 4 issued a notice to the petitioner, which was received by the petitioner on 7th Feb., 2003. This notice is purported to be u/s 142 of the IT Act, 1961, wherein the petitioner was asked to remain present on 14th Feb., 2003, before the respondent No. 4. According to petitioner he found from the letter dt. 7th Feb., 2003, that a notice u/s 148 of the Act of 1961 was alleged to have been issued to the petitioner on 29th May, 2001. In response to above notice fixing the date 14th Feb., 2003 (Annexure P/1A) the petitioner gave two letters to the respondent No. 4 on 10th Feb., 2003, and requested inspection of complete file pertaining to the proceedings against the assessee before 14th Feb., 2003. In second letter, request for grant of certified copies was made by the petitioner, It is pointed out by the petitioner that the notice u/s 148 of the Act of 1961 alleged to have been issued to the petitioner on 29th May, 2001, was never served upon the petitioner. The petitioner also in his request sent letter dt. 10th Feb., 2003, requesting the respondent No. 4 to provide the reasons recorded by Asstt. Director of Income Tax for issuance of notice u/s 148 of the Act of 1961.
On 14th Feb., 2003, the first date was fixed by the respondent No. 4 and petitioner raised certain preliminary objections with respect to the validity of the notice u/s 148 and jurisdiction of the officer issuing the notice, etc. with the request that the preliminary objections should be decided first, thereafter, reply can be submitted on merits, The respondent No. 4 fixed the next date after three days on 17th Feb., 2003. It is stated by the petitioner that again he requested to drop the proceedings initiated by issuing notice u/s 148. The petitioner also submitted a brief reply on merits for the sake of abundant caution. No proceedings took place from 14th Feb., 2003, to 5th March, 2003, and respondent No. 4 issued another letter on 5th March, 2003, informing the petitioner that notice u/s 148 of the Act was issued for the asst. yr. 1992-93 which was served on the same date at the business premises of the concerned and received by Shri Mahaveer Singh who was stated to be representative of the petitioner. It appears that next date was fixed by the respondent No. 4 is of 13th March, 2003, for filing reply by the petitioner. The petitioner before that, on 11th March, 2003, raised objections in detail with a request to decide the objections and pointed out certain decisions of the Hon''ble Supreme Court wherein it is laid down that in case notice issued u/s 148 of the Act of 1961, first of all preliminary objections should be decided by the assessing authority. From the background of these facts it will be relevant to quote certain observations of the respondent No. 4 observed in its communication dt. 13th March, 2003. The para No. 3 of the communication sent by the ITO to the petitioner is as under :
^^3- vk;dj dh /kkjk 148 ds rgr fjdkMZ fd;s x;s dkj.kksa dh QksVks dkWih ekaxh gS ftlds lEcU/k esa vkidh lwpuk ds fy;s fuosnu gS fd ekuuh; mPpre U;k;ky; }kjk G.K.N. Driveshafts (India) Ltd. cuke vk;dj vf/kdkjh ,.M vU; ds ekeys esa fn;s x;s fu.kZ; dk voyksdu djsa uksfVl ds f[kykQ fnYyh gkbZdkVZ ds le{k fjV ;kfpdk nk;j dh Fkh ftls ekuuh; gkbZdksVZ us [kkfjt dj fn;k gS A bl fu.kZ; ds f[kykQ djnkrk lqizhe dksVZ esa x;k vkSj ek-lq-dks- us gkbZdksVZ ds QSlys dks lgh Bgjk;k lkFk gh lkFk ek-lq-dks- us ;s Hkh fu.kZ; fn;k fd tc /kkjk 148 dk uksfVl fn;k tkrk gS rks djnkrk ds fy, lgh jkLrk ;s gS fd og vk;dj fooj.kh is''k djs vkSj ;fn pkgs rks oks uksfVl tkjh djus ls lEcfU/kr dkj.k tkuus dh ekax djs A vkids ekeys esa fnukad 29&5&2001 dh /kkjk 148 ds rhu uksfVl �1992&93] 1993&94] 1994&95� tkjh fd;s x;s Fks ftldh vkius vkt rd ikyuk ugha dh vkSj vkt rd dksbZ fooj.kh ugh Hkjh gS A blfy, vkidks dkj.kksa dks tkuus dk dksbZ vf/kdkj ugha gS vkssssssSj budh QksVks dkWih vkidks ugh nh tk ldrh A vc ;fn vki pkgs rks vki Hkh ekuuh; lqizhe dksVZ ds le{k pys tk;sa tgk� ls vkids lgh fu.kZ; fey tk;sxk A**
Some portion of para No. 8 is also as under :
^^;fn vkidk ekeyk lkQ gS rks lgh dk;Zokgh ;g gS fd lcls igys vki /kkjk 148 ds uksfVl ds tokc esa fooj.kh is''k djrs A fQj bl fooj.kh ds i{k esa viuk fjdkMZ ;k lcwr is''k djrs vkSj tc vkils Li"V :i ls ifpZ;ksa ds ckjs esa �tks yxHkx 500 ls vf/kd gSa� iwNk x;k Fkk ftl ij vki fcYdqy pqIih lk/ks gq, gS A mlds ctk; vki bl dk;kZy; ds uksfVl dks xyr crk jgs gS vkSj lqizhe dksVZ ds fu.kZ; dks tcjnLrh vius i{k esa crk jgs gSa A ifpZ;ksa ds :i esa tks lcwr vkids f[kykQ tkrk gS mlds ckjs esa Li"V gksrk gS fd vkius bu o"ksZ ds fglkc&fdrkc esa cM+h Hkkjh xM+cM+h dh gksxh vkSj tks ewy fooj.kh Hkjh mlesa cgqr de vk; fn[kkbZ A bl ckr dks vxj vki xyr le>rs gS rks vkidks bu ckrksa dk tokc is''k djuk pkfg;s D;ksafd ;s fufoZokn ckr gS fd lk�p dks vkp� ugha vkSj >wB ds ikao ugha gksrs A**
further :
^^budk lfoLrkj mRrj fn;k tk ldrk gS exj ;gk� ;s dke djuk fQtwy gS D;ksafd ;g izf�;k vkids lykgdkj@odhy blfy;s viukrs gS rkfd ewy fo"k; ls /;ku gVk fn;k tk; vkSj fujFkZd ckrksa dks mBkdj U;k; dh izf�;k esa ck/kk mRiUu dh tk;s A**
In above circumstances the petitioner submitted an application dt. 19th March, 2003, (Annexure 9), u/s 144A of the IT Act, 1961, for issuing necessary directions by the Addl. CIT, Pali Range, Jodhpur.
The petitioner yet received another communication dt. 24th Feb., 2003, from the ITO, Sumerpur, wherein the ITO, Sumerpur, went to the extent of saying that :
^^bu dkxtksa esa fy[ks x;s ysu&nsu ds ckjs esa vkils Lif"Vdj.k ekaxk x;k Fkk ysfdu vkt rd vkius dksbZ mRrj ugha fn;k gS A ftlls ;g ekuus dk vf/kdkj curk gS fd vkids fglkc essa cgqr Hkkjh xM+cM+ gS] blfy, vki bu dkxtksa ds ckjs esa ekSu �pqIih� lk/ks gq,s gSa A bu dkxtksa dk esjs dk;kZy; esa lw{erk ls v/;;u fd;k x;k gS A**
These facts reveal that in entire communications sent to the petitioner, it has not come on record that, when notice u/s 148 of the IT Act was sewed upon the petitioner on 29th May, 2001, as mentioned in Annexure 6, by the ITO, Sumerpur, how and why the proceedings remained pending till the year 2003. This fact becomes relevant as the respondent No. 4 blamed the petitioner, tax advisor and advocates for causing delay when the petitioner was, for the first time, asked to appear on 14th Feb., 2003, only and the letter dt. 13th March, 2003, accuses the petitioner and the tax advisors and the advocates for causing delay and blamed that they diverted the attention of the authorities with intention to cause the obstruction in the legal process. The time-gap between first date of appearance before the respondent No. 4 and issuance of Annexure 8 is only one month.
It may be true that sometimes even the Courts may be annoyed by the delay caused in the legal proceedings, but that itself cannot be a ground of annoyance resulting into passing orders only because of annoyance. The Hon''ble Supreme Court in the case of Balraj Taneja and Another Vs. Sunil Madan and Another, held that in a case where defendant adopted dilatory tactic, and the Court passed the decree in favour of the petitioner observed that such annoyance should not disturb the judicial composure. The facts of the case, which were decreed., were recorded in the judgment of the Supreme Court and relevant portion is as under :
"The defendants are adopting this tactic only to protract the proceedings and have not filed the written statement and reply to the application in spite of sufficient opportunity having been given.
Accordingly, the suit is decreed for specific performance in favour of the plaintiff and against the defendants with the directions to the plaintiff to deposit the balance amount of Rs. 3,00,000 (Rupees three lakhs) in this Court within six weeks from today."
But here in this case not only the respondent No. 4 expressed his unwarranted annoyance on the assumption and even went to the extent of justifying his own stand by citing judgments of the Hon''ble Supreme Court, which is clear from the language used in para No. 3 of the communication dt. 13th March, 2003 (Annexure 8). The authority who is to decide, judicially has no right to argue the case and justify the decision, which he is proposing to take, that too, before reaching the stage of taking decision. By Annexure 8 dt. 13th March, 2003, the ITO respondent No. 4 by taking help of a judgment which in the opinion of the respondent No. 4 applies to the facts of this case, by communication decided that the petitioner has no right to know the reasons for issuance of the notice u/s 148 of the IT Act and unfortunately, the respondent No. 4 very arrogantly observed that in case petitioner wants to go to the Supreme Court, he may go there and he will get the right decision. Such an arrogance and attitude is not only absolutely unwarranted, but discloses the pre-determination of the officer to decide the matter in particular manner, which has not been heard. The ITO also observed that instead you (petitioners) are saying that the notice is wrong and he (petitioner) forcibly wants to interpret the judgment of the Supreme Court in his favour.
The ITO without there being any rhyme and reason condemned the tax officers and advocates by saying that these persons are adopting tactic to divert attention from the principal question and by raising frivolous pleas causing obstruction in the judicial process.
The prejudice of the respondent No. 4 is apparent when he in its communication dt. 24th March, 2003, recorded that he assumed that even after receipt of chart, the petitioner will not give any explanation.
In these circumstances, petitioner requested Addl. CIT, to decide the issue of jurisdiction himself or direct the ITO to decide petitioner''s objections first raising objections of prejudice of ITO against the petitioner. This Court is taking judicial notice of bias to the mind of the respondent No. 4 from the communications sent by the respondent No. 4 to the petitioner referred above. Therefore, notice be issued to Shri S.D. Pamnani, ITO, Sumerpur in his personal capacity that this Court is proposing to issue direction to hear this matter by another officer and before that an opportunity is given to Shri S.D. Pamnani to explain his stand and to submit his objection against hearing of the case of the petitioner by some other officer of the Department, who lawfully can hear the matter of the petitioner.
Issue notice to the respondents also for final disposal, returnable within four weeks.
Meanwhile, further proceedings before respondent No. 4 are stayed.