TMI Blog1995 (4) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... ustees of Harshadkumar Family Trust (the " trust " for short) settled by one Madhukanta Natvarlal Vora on March 31, 1967, for the benefit of her son, Harshadkumar, and his wife, Usha. That trust was a co-owner of a building known as " Shreeniketan Building " situated at Worli, Bombay, along with 20 other co-owners which were either private trusts or Hindu undivided families. The petitioner trust had an undivided share to the extent of 4.5 per cent. in the said property. The only income of the petitioner trust was the " property income " derived from the said property. The trust had also an undivided 4.5 per cent. share in the tenancy rights in plot " F " in " Shivsagar Estate " on which the said building was situated. The petitioners and others filed Suit No. 120 of 1978 in the High Court of Judicature at Bombay in ordinary original civil jurisdiction and a receiver came to be appointed by the High Court of Bombay on February 13, 1978. The income of the property was being received by the receiver since the date of his appointment as receiver and accounts were being maintained by him. It is the case of the petitioners that after the receiver was appointed, the trust addressed letter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce documents as required. The first respondent, however, passed orders of assessment against the petitioner trust on March 30, 1983, and December 30, 1983, for the assessment years 1980-81 and 1981-82, respectively, admitting therein that the court receiver was in possession of the building and has not supplied any accounts or information to the petitioner trust. According to the petitioners, even though in the orders of assessment, the first respondent had accepted the reasons stated by the petitioner trust for not filing the returns, for reasons best known to him, he ordered issue of show-cause notice to the petitioner trust to show cause why penalty under section 271(1)(a) of the Act should not be imposed on the trust. The petitioner submitted replies on May 30, 1983, and May 31, 1984, for the assessment years 1980-81 and 1981-82, respectively. At the time of hearing, it was pointed out that the receiver did not send necessary details regarding property income as a result of which other co-owners, namely, Chhotabhai Patel Family Trust, also could not file returns within the stipulated period for the assessment year 1978-79. Interest was charged by the Income-tax Officer, Ward- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority by filing appeals. It was submitted before the appellate authority that the dispute was going on regarding the property and the matter was pending in the High Court of Bombay and the court receiver was appointed. Because of the appointment of the receiver by the court, income-tax returns could not be submitted within the stipulated period and it could be said to be sufficient cause and the Income-tax Officer committed an error in imposing penalty holding that there was no reasonable cause for not submitting the return in time. The appellate authority, after considering the submissions of the appellant, specifically observed that the Income-tax Officer was not right in holding that the cause for non-filing of the return of income was of an unusual nature and was made a ground to escape from payment of penalty. It was not probable that the appellants would intentionally withhold returns of income. The Appellate Authority also observed : " I have no hesitation in agreeing with the plea of learned counsel for the appellants that they were prevented by sufficient cause from filing returns of income. " Accordingly, the appeals were allowed. The order passed by the Income-tax Of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent petitioners which were required to be allowed were dismissed and the revision applications were also dismissed. This is clearly improper and illegal and the petitions should be allowed. Mr. B. J. Shelat for the Department submitted that when findings of fact have been recorded by three authorities, in exercise of the power under article 226 and/or 227 of the Constitution of India, this court cannot come to a different conclusion. He further submitted that an alternative remedy was available to the petitioners by invoking the provisions of section 246 of the Act by filing an appeal to the Commissioner, but the said remedy has not been availed of. By ignoring the statutory provisions, the petitioners have directly approached the Commissioner by filing revision applications under section 264 of the Act. When the revision applications were dismissed, it cannot be said that the Commissioner has committed an error of law which requires to be corrected by this court. Finally, it was submitted by Mr. Shelat, that even if this court is of the opinion that the orders passed by the Income-tax Officer as well as by the Appellate Assistant Commissioner were contrary to law they may be se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al position, it cannot be reopened. In the instant case, as observed by us hereinabove, the fact was brought to the notice of the respondent authority by the petitioners that litigation was going on between the parties and the receiver was appointed by the High Court of Bombay. That fact was also accepted by the Department for the assessment year 1978-79 and even for the year 1982-83 in respect of a number of appeals filed by other co-owners as also by some of the petitioners. In our opinion, there was no good and justifiable cause to take a different view when some appeals came before a different officer without there being any change in the factual position and when the earlier decision was not challenged by the Department. Hence, there is an error apparent on the face of the record committed by the appellate authority. It was, therefore, obligatory on the part of the revisional authority to correct that error of law. By not allowing the revision applications, the revisional authority has also committed the same error. It is true that the petitioners could have filed an appeal under section 253 of the Act before the Tribunal against the order passed under section 246 of the Act b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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