Order set aside as was based on lone basis that case is not covered under instruction no. 1914 dated 02.12.1993

Hemant Shantill Jain Vs Asst. CIT (Madras High Court)

Madras High Court set aside the impugned order as it was based on one basis that writ petitioner’s case is not covered under instruction no. 1914 dated 02.12.1993.

Facts- A search operation qua the writ petitioner u/s. 132 of the ‘Income Tax Act, 1961’; that on the basis of seized material, a notice u/s. 153C of IT Act was issued; that this was followed by a notice dated 14.12.2021 u/s. 143(2) and a notice dated 20.01.2022 u/s. 142(1); that all this culminated in an order dated 28.03.2022 made by the first respondent inter alia u/s. 143(3) read with Section 153 of IT Act; that vide the said order of AO, AO had come to the conclusion that there is unaccounted capital drawings and unexplained interest credit both u/s. 56 of IT Act; that pursuant to such assessment a demand of Rs.73,23,592/- was raised; that the said order of AO was carried in appeal by the writ petitioner by way of an appeal dated 26.04.2022 to the second respondent; that it is to be noted that the second respondent is the Appellate Authority; that this Court is informed that the appeal is u/s. 246A of IT Act; that pending appeal, writ petitioner moved the first respondent (Assessing Officer) u/s. 220(6) of IT Act with an interim prayer; that the first respondent in and by a terse ‘order dated 12.12.2022 bearing reference ITBA/COM/F/17/2022-23/1047943054(1)’ negatived the interim prayer; that captioned writ petition has been filed assailing the impugned order.

Conclusion- The impugned order i.e., order dated 12.12.2022 bearing reference ITBA/COM/F/17/2022-23/1047943054(1) made by the first respondent is set aside. The impugned order is set aside on the sole ground that it has proceeded on the lone erroneous basis that said instruction (Instruction No.1914 dated 02.12.1993 as modified by two office memoranda dated 29.02.2016 and 31.07.2017) does not apply to the writ petitioner.

FULL TEXT OF THE JUDGMENT/ORDER OF MADRAS HIGH COURT

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