TMI Blog2004 (1) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... tition has been filed for a writ of certiorari to quash the impugned notice under section 226(3) of the Income-tax Act, 1961, vide annexure 5 to the writ petition. The petitioner has also prayed for a mandamus directing respondent No. 1 to refund the amount recovered under the notice under section 226(3) with interest. The petitioner has also prayed for a direction to respondent No. 1 to refund Rs. 75,000 deposited by the petitioner with interest and has also prayed that respondent No.3 be directed to decide the appeal of the petitioner on merits expeditiously. Heard learned counsel for the parties. The petitioner is a registered partnership firm which is doing the business of manufacture of corrugated boxes/card board boxes. The relevant assessment year is 1997-98 and in this year the petitioner filed a return on October 31, 1997, disclosing income of Rs. 27,374.28. The petitioner has alleged that it has maintained regular and proper books of account in the ordinary and regular course of business. The petitioner appeared before the Assessing Officer/Income-tax Officer, Ward No.5, Allahabad, and the Assessing Officer by his order dated March 15,2000, determined the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer as well as the Commissioner of Income-tax (Appeals) that the records were misplaced somewhere by the chartered accountant and therefore the petitioner was helpless in conducting the appeal. However, the Commissioner of Income-tax (Appeals) decided the appeal by the ex parte order dated April 30, 2002. True copy of the said order is annexure 3 to the writ petition. Thereafter a second appeal was filed by the petitioner before the Tribunal on May 28, 2002, which was decided on December 30, 2002 vide annexure 4. The Tribunal by its order dated December 30, 2002, set aside the order of the Commissioner of Income-tax (Appeals) and remanded the matter back to the Commissioner of Income-tax (Appeals) with certain directions as stated in para. 5 of this order. The main direction of the Tribunal was that the party should be provided copies with the accounts of the third parties and the matter should be decided after considering each and every ground taken by the petitioner. True copy of the order of the Tribunal dated December 30, 2002, is annexure 4 to the petition. The appeal is now pending before the Commissioner of Income-tax (Appeals). In the meantime respondent No. 1, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of closure. It is alleged that the demand under section 226(3) is illegal and is based on illegal assessment. The Assessing Officer has himself stated in the assessment order that due to shortage of time it was impossible to verify the facts properly and therefore he made major additions. He has also stated that the difference of Rs. 4,25,000 which has been stated to have been paid by the assessee to other parnes could not be verified due to shortage of time. For the same assessment year a notice under section 148 of the Income-tax Act was issued by the Income-tax Officer, Ward No. 5, Allahabad. The petitioner gave a letter to the Joint Commissioner of Income-tax, Allahabad, requesting him to withdraw the demand against the petitioner for the assessment year 1997-98. In that letter the petitioner stated that when a notice is issued under section 148 then the order dated March 15, 2000, should remain under abeyance and hence the demand should be withdrawn. True copy of the letter dated October 22, 2001, is annexure 8 to the writ petition. The petitioner relied on the decision of this court reported in Saran Engineering Co. Ltd. v. CIT [1983] 143 ITR 765, in which it was observ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccount are not supplied to the petitioner the assessment order is illegal. Learned counsel for the petitioner has also submitted that the petitioner filed a stay application along with his appeal but there was no Commissioner of Income-tax (Appeals) for hearing the appeal for a long time. The financial condition of the petitioner was bad and the firm has become sick, and hence it was wholly arbitrary and illegal to attach the petitioner's property. From the facts mentioned above it appears that the assessment order dated March 15, 2000 (annexure 1 to the writ petition), on the basis of which the impugned notice under section 226(3) was issued merged into the order of the Commissioner of Income-tax (Appeals) dated April 30, 2002, copy of which is annexure 3 to the writ petition, and the aforesaid order of the Commissioner of Income-tax (Appeals) in turn merged into the order of the Income-tax Appellate Tribunal dated December 30, 2002, copy of which is annexure 4 to the writ petition. A perusal of the order of the Tribunal dated December 30, 2002, shows that the Tribunal has set aside the order of the Commissioner of Income-tax (Appeals) on the ground that the Assessing Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4482, 4491, the Supreme Court observed: "The word 'restitution' in its etymological sense means restoring to a party on the modification, variation or reversal of a decree or order, what has been lost to him in execution of decree or order of the court or in direct consequence of a decree or order....The principle of restitution has been statutorily recognised in section 144 of the Code of Civil Procedure, 1908. Section 144 of the Code of Civil Procedure speaks not only of a decree being varied, reversed, set aside or modified but also includes an order on par with a decree. The scope of the provision is wide enough so as to include therein almost all the kinds of variation, reversal, setting aside or modification of a decree or order. The interim order passed by the court merges into a final decision. The validity of an interim order, passed in favour of a party, stands reversed in the event of final decision going against the party successful at the interim stage. Unless otherwise ordered by the court, the successful party at the end would be justified with all expediency in demanding compensation and being placed in the same situation in which it would have been if the interi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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