# Mohan Lal Santwani (HUF) v. U.O.I. & Ors

- **Citation:** (2022) 5 ILRA 1408
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-25
- **Case number:** Writ Tax No.569 of 2022
- **Bench:** Surya Prakash Kesarwani, Jayant Banerji
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohan-lal-santwani-huf-v-u-o-i-ors-48515
- **Pages:** 10

## Headnote

A.S.G.I., Sri Arvind Kumar Goswami, Sri
Gaurav Mahajan

A. The principles of judicial discipline require
that the orders of the higher appellate
authorities should be followed unreservedly by
the subordinate authorities. The mere fact that
the order of the appellate authority is not
"acceptable" to the department in itself an
objectionable phrase or that is the subject
matter of an appeal can furnish no ground for
not following it unless its operation has been
suspended by a competent court.
B. If there is a stay obtained from a higher
forum, the mere fact of filing of an appeal will
not entitle the authority to not comply with the
order of the Forum.

Writ Petition allowed. (E-12)

List of Cases cited:-

## Text

1408 INDIAN LAW REPORTS ALLAHABAD SERIES
non bailable warrants were issued against
him. If he has not yet been taken into
custody, he is not to be taken in custody,
subject to compliance of the provisions of
Section 437-A CrPC. But, if he has been
taken into custody, he shall be released
forthwith, subject to compliance of the
provisions of Section 437-A CrPC to the
satisfaction of the trial court.

56. Let a copy of this order be
forwarded to the court below along with the
record for information and compliance.
----------
(2022)05ILR A1408
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.04.2022

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE JAYANT BANERJI, J.

Writ Tax No.569 of 2022

Mohan Lal Santwani (HUF) ...Petitioner
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Satya Vrata Mehrotra, Sri Abhinav
Mehrotra

Counsel for the Respondents:
A.S.G.I., Sri Arvind Kumar Goswami, Sri
Gaurav Mahajan

A. The principles of judicial discipline require
that the orders of the higher appellate
authorities should be followed unreservedly by
the subordinate authorities. The mere fact that
the order of the appellate authority is not
"acceptable" to the department in itself an
objectionable phrase or that is the subject
matter of an appeal can furnish no ground for
not following it unless its operation has been
suspended by a competent court.
B. If there is a stay obtained from a higher
forum, the mere fact of filing of an appeal will
not entitle the authority to not comply with the
order of the Forum.

Writ Petition allowed. (E-12)

List of Cases cited:-

1. U.O.I. Vs Kamlakshmi Finance Corp. Ltd.
1992 (Suppl) SC-C 443 (para 6)

2. Official Liquidator Vs Dayanand & ors. (2008)
10 SCC (para 90)

3. Kishore Samrite Vs St. of U.P. & ors. 2013 (2)
SCC 398 (para 29)

4. Bishnu Ram Borah & anr. Vs Parag Saikia &
ors. 1984 (2) SCC 488 ( para 11)

5. Bhopal Suger Industries Ltd. Vs Income Tax
Officer, Bhopal AIR 1961 (5) SC 182

6. Commissioner of Income Tax Vs Ralson
Industries Ltd 2007 (2) SCC 326 ( para 9)

7. U.O.I. Vs Namit Sharma 2013 (1) SCC 745 (
para 108.14)

8. Dr. H. Phunindre Singh & ors. Vs K.K. Sethi &
anr. (1998) 8 SCC 640 (para 2)

9. Ghaziabad Development Authority Vs Balbir
Singh (2004) 5 SCC 65 (para 26)

10. Pramod Kumar Dixit & anr. Vs Central
Administrative Tribunal & Ors Writ Petition No.
1082 (SB) of 2009, decided on 15.12.2010

11. Sadanand Mukherji Vs St. of U.P. & ors.
2009 (1) UPLBEC 167 (para 4 and 5)

12. Income Tax Appeal No. 293 of 2016 ( The
Pr. Commissioner of Income Tax-9, Mumbai Vs
M/s Associated Cables Pvt. Ltd, Mumbai,
decided on 03.08.2018
(Delivered by Hon'ble Surya Prakash
Kesarwani, J.
&
Hon'ble Jayant Banerji, J.)
5 All. Mohan Lal Santwani (HUF) Vs. U.O.I. & Ors.
1409

1. Heard Sri Abhinav Mehtotra,
learned counsel for the petitioner and Sri
Gaurav Mahajan, learned counsel for the
Income Tax Department.

Order on Amendment Application
No.02 of 2022 dated 18.04.2022

2. With the consent of the learned
counsel
for
the
parties,
amendment
application
is
allowed.
Necessary
amendment be carried out during the
course of the day.

The applicant is also permitted to
correct the Assessment Year in the prayer
clause of the amendment application.

Order on Writ Petition

3. This writ petition has been filed
praying for the following relief:-

"(a) Issue a writ, order or
direction in the nature of certiorari
quashing the order dated 19.03.2022
passed
by
the
respondent
revenue
rejecting
the
objections
taken
by
petitioner on the matter concerning
"issue" of notice under Section 148 of the
Income Tax Act.

(b) Issue a writ, order or
direction in the nature of certiorari
quashing the notice under Section 148 of
Income Tax Act, as also the Sanction,
authorizing the issuance of such notice,
both even dated 31.03.2021; and the
connected proceeding for reassessment of
Income for A.Y. 2013-14.

(c) That, this Hon'ble Court be
pleased to issue a writ, order or direction
in the nature of certiorari, quashing the
impugned order of Assessment for A.Y.
2013-14 , dated 29.03.2022, bearing DIN
ITBA/AST/S/147/2021-22/1041898744(1),
passed by Assessing Officer."

4. On 18.04.2022, this writ petition was
heard at length and following order was
passed.

1. Heard Shri Abhinav Mehrotra,
learned counsel for the petitioner, Shri
Gaurav Mahajan, learned Senior Standing
Counsel for the respondent nos. 2, 3 and 4
and Shri Arvind Kumar Goswami, learned
Central Government Standing Counsel for
the respondent no. 1.

2. This writ petition has been filed
praying for the following relief:

"(a) Issue a writ, order or direction
in the nature of certiorari quashing the order
dt. 19.03.2002 passed by the respondent
revenue rejecting the objections taken by
petitioner on the matter concerning "issue" of
notice under Section 148 of the Income Tax
Act.

(b) Issue a writ, order or direction
in the nature of certiorari quashing the notice
under Section 148 of the Income Tax Act, as
also the sanction, authorising the issuance of
such notice, both even dt. 31.03.2021; and
the connected proceedings for reassessment
of income for A.Y. 2013-14."

3. The petitioner has earlier filed
Writ Tax No. 171 of 2022 which was
disposed of by order dated 10.3.2022 as
under:

"Heard Sri Abhinav Mehrotra,
learned counsel for the petitioner, learned
A.S.G.I. for the Union of India -
respondent No.1 and Sri Gaurav Mahajan,
learned senior standing counsel for the
Income Tax Department - respondent
Nos.2 and 3.
1410 INDIAN LAW REPORTS ALLAHABAD SERIES

All the learned counsels for the
parties jointly state that the question of
issuance of notice has been decided today
by this court in Writ Tax No.78 of 2022
(Daujee Abhushan Bhandar Pvt. Ltd. vs.
Union of India and 2 others). They jointly
state that since the petitioner has raised
objection before the Assessing Authority
on the point of issue of notice which is
pending disposal before the Assessing
Authority,
therefore,
the
Assessing
Authority may be directed to decide the
objection in accordance with law after
considering the judgment in the case of
Daujee Abhushan Bhandar Pvt. Ltd.
(supra).

In view of the aforesaid, the writ
petition is disposed of directing the
respondent-authority concerned to decide
the objection of the petitioner against the
notice under Section 148 of the Act, 1961,
in accordance with law on the point of date
of issuance of notice."

4. Thereafter, the respondent no.
4 has passed the impugned order in which
it observed as under:

"Further, Hon'ble Allahabad
High Court has quashed such notices
issued u/s 148 on or after 01.04.2021. But
the Department has filed SLP before
Hon'ble Supreme Court on this issue.
Therefore, till the outcome of the issue
pending before Hon'ble Court, it cannot
be said that the notice is not valid.
Therefore, your objections have no force
and therefore rejected. Please this may be
treated as disposal of your objections."

5.
Thus,
the
aforequoted
observation made by the respondent no. 4
in the impugned order dated 19.3.2022,
prima
facie,
appears
to
be
highly
contemptuous, whimsical and against all
settled principles of propriety and law.

6.Apart
from
above,
the
impugned order, prima facie, appears to
be misleading inasmuch as in the
impugned order, the respondent no. 4 has
deliberately not disclosed 'sent time stamp'
reports which is always available with the
department. That apart, as per reports
being filed before this Court by means of
counter affidavits and to be precise in Writ
Tax No. 211 of 2022, there is 'Income Tax
Business
Application
Technical
Team'
which used to give the date and time of (i)
generation of notice, (ii) digital signing in
ITBA by AO, and (iii) triggering of e-mail.
These details are also totally lacking in the
impugned order.

7. Under the circumstances, we
direct the respondent no. 4 to file a
personal affidavit of an officer of the
Centre not below the rank of Additional
Commissioner of Income Tax to explain the
things as noted above and file copies of
'sent time stamp' and reports of Income Tax
Business
Application
Technical
Team,
within three days.

8. Put up as a fresh case on
21.4.2022 at 10:00 AM.
 (emphasis supplied by us)

5. On 21.04.2022, matter was again
heard and following order was passed, as
under"-

"1. Heard learned counsels for
the parties.

2. Shri Gaurav Mahajan, learned
Senior
Standing
Counsel
for
the
respondent-Income Tax Department prays
for further time to enable the respondent
5 All. Mohan Lal Santwani (HUF) Vs. U.O.I. & Ors.
1411
no.4 to file his personal affidavit in
compliance to the order dated 18.04.2022.

3. In our order dated 18.04.2022,
we have noted the facts as well as the
conduct of the respondents that they have
clearly denied to obey the final judgment of
this Court. That apart, the respondents
have also attempted to mislead the Court
by suppressing material facts. Despite time
granted, personal affidavit is not being
filed by the respondent no.4.

4. Instances of not obeying orders
of this Court by the respondent-Income Tax
authorities, are increasing day-by-day.

5. In view of the aforesaid, last
opportunity is afforded to the respondent
no.4 to file his personal affidavit in
compliance of the order dated 18.04.2022
before the next date fixed subject to
payment of cost of Rs.5000/- which shall be
deposited with the High Court Legal
Services
Committee,
High
Court,
Allahabad.

Put up as a fresh case for further
hearing on 25.04.2022 at 10:00 a.m."

6. Sri Gaurav Mahajan, learned
counsel for the respondents has filed a print
out of online deposit of Rs. 5,000/- as cost
with the High Court Legal Services
Committee, High Court Allahabad along
with a receipt i.e. the amount of cost
imposed by means of the previous order
dated 21.04.2022.

7. Today, a short counter affidavit
dated 24.04.2022 has been filed by the
learned Senior Standing Counsel on behalf
of the respondent nos. 2,3 and 4. In
paragraph no. 3,5,6,7,8 and 9 of the
aforesaid short counter affidavit filed on
behalf of the respondent no.2,3 and 4, it has
been stated as under:-

3. That at the very outset it is
most humbly and respectfully submitted
that the deponent personally and on
behalf of the officers of the ReFAC(AU)
tenders an unconditional apology for the
language
used
in
the
order
dated
19.03.2022
by
which
supplementary/additional objection of the
petitioner were decided.

Neither the deponent nor the
officers of the Assessment Unit had any
intention to disobey/disregard the judgment
of this Hon'ble Court in the case of Ashok
Kumar Agarwal and have the highest
regard to the judgments of the Hon'ble
Court.

5. That it is most respectfully
submits that FAO who may be sitting in
any corner of the Country for the Faceless
Assessment Scheme is not aware of the
technical information about date and
stamp of issue of notice, dispatch of notice
or service of notice. The FAO receives a
digitally maintained Order Sheet which
automatically got generated on the date of
issuance of the notice u/s 148 of the Act.
The
digitally
generated
order
sheet
mentions
the
date
wise,
actions/descriptions, from user to user,
remarks etc. A photocopy of the order sheet
maintained digitally is enclosed herewith
and marked as Annexure No. SCA-1.

6. That the information available
with FAO was that the notice under 148 of
the Act was issued by Jurisdictional
assessing Officer on 31-03-2021 and that
the notice u/s 148 was placed on the e filing
portal of the assessee on 31-03-2021. The
rest of information with regard to issuance
1412 INDIAN LAW REPORTS ALLAHABAD SERIES
of notice is now provided by the ITBA /JAO
in response to the High Court Order vide
his email dated 23-04-22 sent to office of
the deponent.

7. That in the present case the
Technical Team of ITBA provided the
following details to the JAO through email
on 22.04.2022 and the same was also
shared with the office of the deponent. The
reply received from the Technical Team of
ITBA is as follows :-

Date & time of Generation of
Notice u/s 148 in ITBA system by AO:

3/31/2021 9:01:29 PM

Date & time of Digital signing
(DSC) in ITBA by AO :

3/31/2021 9:51:46 PM

Date &time of triggering of email
automatedly by ITBA technical servers :

4/01/2021 5:30:08 AM

Date & time of delivery of email
as per data in ITBA technical servers :
4/01/2021 5:30:10 AM

A photocopy of the email from
JAO is enclosed herewith and marked as
Annexure No. SCA-2.

8. That it is most respectfully
submitted that there was no concealment on
the part of FAO or ReFAC(AU) as such
there was no attempt to misiead nor was
there any intention to mislead. That it is
most respectfully submitted that on the
order dated 19.03.2022 was passed keeping
in mind the directions of Hon'ble Court
vide order dated 10.03.2022 "to decide the
objection of the petitioner against the
notice under Section 148 of the Act, 1961,
in accordance with law on the point of date
of issuance of notice" and as per the details
available that the notice was issued on
31.03.2021, the FAO was under bonafide
belief that the notice been duly reflected on
the portal of the assessee on 31.03.2021. It
is further most respectfully submitted that
the details of time of issuing the notice and
digitally signing have now been received
from JAO/ITBA team.

9.
That
the
deponent
has
examined the orders and letters issued by
FAO and it is undeniable that the choice of
words and language used by FAO is
unacceptable. The FAO has represented
before the deponent that he cannot even
dream to think of disobeying or showing
disregard to the orders of the Court. The
only purpose was to communicate and
convey to the assessee the fact that the SLP
of the Department was pending before the
Hon'ble Supreme Court and on the date of
this affidavit the judgment has been
reserved by the Hon'ble Supreme Court."

8. From the averments made by the
respondent nos. 2,3 and 4 in the aforesaid
short counter affidavit, it is evident that the
notice under Section 148 of the Income Tax
Act, 1961 for the Assessment Year 2013-14
was issued to the petitioner on 01.04.2021,
whereas the limitation of issuing the notice
expired on 31.03.2021. Thus notice under
Section 148 of the Income Tax Act, 1961
was time barred and consequently it was
without jurisdiction.

9. Since large number of writ
petitions are being filed in which the date
and time of issuance of notice under
Section 148 of the Income Tax Act, 1961
are in issue, and, importantly, those notices
are being issued by e-mail, it is directed
5 All. Mohan Lal Santwani (HUF) Vs. U.O.I. & Ors.
1413
that the respondent no. 1 shall ensure
that the date and time of triggering of email for issuing notices and orders are
reflected in the online portal relating to
the concerned assessees.

10. Facts of the case as discussed
above, particularly the observations made
by the respondent no.4 in the last line of the
impugned order dated 19.03.2022 noticed
by us in our order dated 18.04.2022 quoted
in paragraph 4 above clearly indicates that
the order dated 19.02.2022 has been passed
by the respondents in breach of judicial
discipline and propriety causing harassment
to the petitioner/assessee on account of the
failure to give effect to the order of this
Court dated 10.03.2022 in Writ Tax No.
171 of 2022 which was filed by the
petitioner. We propose to comment on the
conduct of the officer concerned but the
respondents have tendered unconditional
apology by filing a short counter affidavit
dated 22.04.2022, as noted in para 7 above,
therefore, in view of the unconditional
apology tendered by the deponent Sri
Pawan
Kumar
Sharma,
Additional
Commissioner of Income Tax in the
aforesaid short counter affidavit, we do not
propose to proceed against the respondent
no.4 by referring the matter for contempt.
However, we direct the respondents to be
careful in future and must have due regard
to the judgments and orders of this Court,
keeping in mind the settled principal of
judicial propriety and discipline.

Breach
of
Judicial
DisciplineMisconduct-Contemptuous.

11. In the case of Union of India Vs.
Kamlakshmi Finance Corpn. Ltd. 1992
(Suppl) SC-C 443 (para 6) Hon'ble
Supreme Court upheld the observation of
Hon'ble High Court on the conduct of an
Assistant Collector and the harassment to
the assessee caused by the failure of these
officers to give effect to the order of
authorities higher to them in the appellate
hierarchy and has held as under:

"6. Sri Reddy is perhaps right in
saying that the officers were not actuated
by any mala fides in passing the impugned
orders. They perhaps genuinely felt that the
claim of the assessee was not tenable and
that, if it was accepted, the Revenue would
suffer. But what Sri Reddy overlooks is that
we are not concerned here with the
correctness or otherwise of their conclusion
or of any factual mala fides but with the
fact that the officers, in reaching their
conclusion, by-passed two appellate orders
in regard to the same issue which were
placed before them, one of the Collector
(Appeals) and the other of the Tribunal.
The High Court has, in our view, rightly
criticised this conduct of the Assistant
Collectors and the harassment to the
assessee caused by the failure of these
officers to give effect to the orders of
authorities higher to them in the appellate
hierarchy. It cannot be too vehemently
emphasised that it is of utmost importance
that, in disposing of the quasi-judicial
issues before them, revenue officers are
bound by the decisions of the appellate
authorities. The order of the Appellate
Collector is binding on the Assistant
Collectors working within his jurisdiction
and the order of the Tribunal is binding
upon the Assistant Collectors and the
Appellate Collectors who function under
the jurisdiction of the Tribunal. The
principles of judicial discipline require
that the orders of the higher appellate
authorities
should
be
followed
unreservedly
by
the
subordinate
authorities. The mere fact that the order
of
the
appellate
authority
is
not
1414 INDIAN LAW REPORTS ALLAHABAD SERIES
"acceptable" to the department -- in itself
an objectionable phrase -- and is the
subject matter of an appeal can furnish no
ground for not following it unless its
operation has been suspended by a
competent court. If this healthy rule is not
followed, the result will only be undue
harassment to assessees and chaos in
administration of tax laws."
 (Emphasis supplied by us)

12. In the case of Official Liquidator
Versus Dayanand & Ors. (2008) 10 SCC (para
90) Hon'ble Supreme Court observed that "....it
must be remembered that predictability and
certainty is an important hallmark of judicial
jurisprudence developed in this country in last
six decades...."

13. In the case of Kishore Samrite versus
State of U.P. and others 2013 (2) SCC 398
(para 29), Hon'ble Supreme Court held as
under:-

"29.
Judicial
discipline
and
propriety are the two significant facets of
administration of justice. Every court is
obliged to adhere to these principles to ensure
hierarchical discipline on the one hand and
proper dispensation of justice on the other.
Settled canons of law prescribe adherence to
the rule of law with due regard to the prescribed
procedures. Violation thereof may not always
result in invalidation of the judicial action but
normally it may cast a shadow of improper
exercise of judicial discretion."

14. In the case of Bishnu Ram Borah
and another Vs. Parag Saikia and others 1984
(2) SCC 488 ( para 11), Hon'ble Supreme
Court observed as under:-

"11. It is regrettable that the
Board of Revenue failed to realize that like
any other subordinate tribunal, it was
subject to the writ jurisdiction of the High
Court under Article 226 of the Constitution.
Just as the judgments and orders of the
Supreme Court have to be faithfully
obeyed and carried out throughout the
territory of India under Article 142 of the
Constitution, so should be the judgments
and orders of the High Court by all
inferior courts and tribunals subject to
their supervisory jurisdiction within the
State under Article 226 and 227 of the
Constitution. We cannot but deprecate the
action of the Board of Revenue in refusing
to carry out direction of the Hon'ble High
Court..............".

15. In the case of Bhopal Suger
Industries Ltd. Versus Income Tax Officer,
Bhopal AIR 1961 (5) SC 182, Hon'ble
Supreme Court observed that " .....the
Income Tax Officer had virtually refused to
carry out the clear and unambiguous
directions which a superior tribunal like
the Income Tax Appellate Tribunal, had
given to him by its final order in exercise of
its appellate powers in respect of an order
of assessment made by him, such refusal is
in effect a denial of justice, and is
furthermore destructive of one of the basic
principles in the administration of justice
based as it is in this country on a
hierarchy of courts...."

16. Law laid down in the aforesaid
judgments has been reiterated by the
Hon'ble Supreme Court in the case of
Commissioner of Income Tax versus
Ralson Industries Ltd 2007 (2) SCC 326 (
para 9).

17. In the case of Union of India
Versus Namit Sharma 2013 (1) SCC 745 (
para 108.14) Hon'ble Supreme Court
explained the precedent
and judicial
discipline and held as under:-
5 All. Mohan Lal Santwani (HUF) Vs. U.O.I. & Ors.
1415

"108.14. Under the scheme of the
Act of 2005, it is clear that the orders of the
Commissions are subject to judicial review
before the High Court and then before the
Supreme Court of India. In terms of Article
141 of the Constitution, the judgments of
the Supreme Court are law of the land and
are binding on all courts and tribunals.
Thus, it is abundantly clear that the
Information Commission is bound by the
law of precedence i.e. judgments of the
High Court and the Supreme Court of
India. In order to maintain judicial
discipline
and
consistency
in
the
functioning of the Commission, we direct
that the Commission shall give appropriate
attention to the doctrine of precedence and
shall not overlook the judgments of the
courts dealing with the subject and
principles applicable, in a given case. It is
not only the higher court's judgments that
are binding precedents for the Information
Commission, but even those of the larger
Benches of the Commission should be given
due acceptance and enforcement by the
smaller Benches of the Commission. The
rule of precedence is equally applicable to
intra-court appeals or references in the
hierarchy of the Commission".

18. In the case or Dr. H. Phunindre
Singh and others Vs. K.K. Sethi and
another (1998) 8 SCC 640 (para 2)
Hon'ble Supreme Court considered the
question of deliberate violation of the
subsisting order of the Court and held as
under:-

" 2. Heard learned counsel for
the parties. In our view, in the facts of the
case, particularly when the order passed by
the learned Single Judge of the High Court
was not stayed by the Division, Bench, the
contempt
petition
should
have
been
disposed of on merits instead of adjourning
the same till disposal of the appeal, so that
question of deliberate violation of the
subsisting order of the Court is considered
and enforceability of the Court's order is
not permitted to be diluted. In the facts of
the case, we feel that the contempt petition
should be disposed of within a period of
three months from the date of the
communication of this order and we order
accordingly. It is further directed that
before disposal of the contempt petition, the
pending appeal should not be taken up
hearing.
The
appeal
is
accordingly
disposed of".

19. In the case of Ghaziabad
Development Authority Vs. Balbir Singh
(2004) 5 SCC 65 (para 26) Hon'ble
Supreme Court held that " .....We therefore
clarify that unless there is a stay obtained
from a higher forum, the mere fact of
filing of an appeal will not entitle the
authority to not comply with the order of
the Forum. Even though the authority may
have filed an appeal/revision, if no stay is
obtained or if stay is refused, the order
must be complied with......"

20. In the case of Asit Kumar Das
Versus J. Panda, the Chief Post Master
Central and Ors. (Civil Appeal No.1227 of
2015), order dated 22.02.2015 Hon'ble
Supreme Court observed that "..... it is trite
that the filing of an Appeal does not result
in the assailed order becoming inoperative
and unworthy of being complied with.
There was, therefore, no justification for
taking the contempt petition off the list of
the High Court, albeit with permission
granted for its relisting......"

21. In the case of Pramod Kumar
Dixit
&
another
Vs.
Central
Administrative Tribunal & Ors Writ
Petition No. 1082 (SB) of 2009, decided on
1416 INDIAN LAW REPORTS ALLAHABAD SERIES
15.12.2010, Division Bench of this Court
held that " ......once this Court had given a
direction to decide the matter on merit it
was not open for the Tribunal to dilute the
mandate of the order by declining the
admission of original application. The
order of the Tribunal seems to be bordering
on the contempt of the order of the High
Court......."

22. In the case of Sadanand
Mukherji Vs. State of U.P. & others 2009
(1) UPLBEC 167 (para 4 and 5) Hon'ble
Court held as under:-

"4. Now, while deciding the
present
controversy
learned
Tribunal
recorded a finding that the claim petition is
not maintainable for the same relief, when
this Court while remitting back the case to
the Tribunal directed the Tribunal to
decide the same on merit, it was not open
for the Tribunal to make observation that
the claim petition was barred by principle
of res judicata and not maintainable. Once
the writ petition was allowed by the
Division Bench of this Court, then Tribunal
should have decided the case on merit
alone and not on any other ground like
being barred by principle of res judicata. It
is for the second time that the Tribunal
while recording the finding that the claim
petition is barred by principle of res
judicata. has dismissed the claim petition in
violation of the judgment and order of this
Court dated 23.8.2005 passed in Writ
Petition No.1381 (S/B) of 2005.

5. In the hierarchy of system, the
power
of
superintendence
on
all
subordinate
courts,
authorities
and
tribunals is vested under Article 227 of the
Constitution of India. After remitting of
matter by this Court by the judgment and
order dated 23.8.2005, it was not open for
the Tribunal to reject the petitioner's case
with the finding that the claim petition is
barred by res judicata. Learned member of
the Tribunal while recording such finding
have over stepped jurisdiction vested in
them which at the face of record, amounts
to contempt of this Court. Both the
members of the Tribunal ought to have
been cautious of the settled principles of
law that they should not have rejected the
claim petition in contravention of directions
issued by this Court."

23. In Income Tax Appeal No. 293 of
2016 ( The Pr. Commissioner of Income
Tax-9, Mumbai Versus M/s Associated
Cables Pvt. Ltd, Mumbai, decided on
03.08.2018 Division Bench of Bombay
High Court held that "...... Merely filing of
an SLP from the order of Hindustan
Unilever Ltd.(supra) would not make the
order of this Court bad in law or give a
license to the Revenue to proceed on the
basis that the order is stayed and/or in
abeyance....."

24. In view of law laid down by the
Hon'ble Supreme Court and High Court,
the principles of judicial discipline and
propriety and binding precedent, we hold
as under:-

(a)
Judicial
discipline
and
propriety are the two significant facets of
administration of justice. The principles of
judicial discipline require that the orders of
the higher appellate authorities should be
followed unreservedly by the subordinate
authorities. The mere fact that the order of
the appellate authority is not "acceptable"
to the department in itself an objectionable
phrase or that is the subject matter of an
appeal can furnish no ground for not
following it unless its operation has been
suspended by a competent court. If this
5 All. Shailendra Kumar Prajapati Vs. State of U.P. & Anr.
1417
healthy rule is not followed, the result will
only be undue harassment to assessees and
chaos in administration of tax laws.

(b) Just as the judgments and
orders of the Supreme Court have to be
faithfully
obeyed
and
carried
out
throughout the territory of India under
Article 141 of the Constitution, so should
be the judgments and orders of the High
Court by all inferior courts and tribunals
subject to supervisory jurisdiction within
the State under Article 226 and 227 of the
Constitution.

(c) If an officer under the Income
Tax Act, 1961 refuses to carry out the clear
and unambiguous direction in a judgment
passed by the Hon'ble Supreme Court or
High Court or the Income Tax Appellate
Tribunal then in effect, it is denial of justice
and is destructive of one of the basic
principles in the administration of justice
based on hierarchy of the Court.

(d) Unless there is a stay obtained
by the authorities under the Income Tax
Act, 1961 from higher forum, the mere fact
of filing appeal or SLP will not entitle the
authority not to comply with the order of
the High Court. Even though the authority
may have filed an appeal or SLP but either
could not obtain a stay or the stay is
refused, the order of the High Court must
be complied with. Mere filing of an appeal
or SLP against the judgment or order of
High Court does not result in the assailed
judgment or order becoming inoperative
and unworthy of being complied with.

25. In view of the principles settled by
Hon'ble Supreme Court and by High Courts
in the judgments, briefly discussed above,
we direct the respondents to maintain
judicial
discipline
and
follow
the
doctrine of binding precedent and be
careful in future, having due regard to
the authorities of the Court, keeping in
mind
the
judicial
propriety
and
discipline.

26. The impugned notice dated
31.03.2021 issued on 01.04.2021 under
Section 148 of the Income Tax Act, 1961,
being without jurisdiction, cannot be
sustained
and
is
hereby
quashed.
Consequently, the order dated 19.03.2022
and
the
Reassessment
Order
dated
29.03.2022 for the Assessment Year 201314 can also not be sustained and are
hereby
quashed
inasmuch
as,
the
jurisdictional notice itself was without
jurisdiction.

27. For all the reasons afore-stated,
the writ petition is allowed to the extent
and in terms herein above.

28. Let copy of this judgment be sent
by the Registrar General of this Court to
the respondent no.1 for circulation amongst
the authorities under the Income Tax Act,
1961 and for observance of the principles
of the judicial discipline and propriety,
stated above.
----------
(2022)05ILR A1417
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.04.2022

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Criminal Misc. Transfer Application No. 285 of
2021

Shailendra Kumar Prajapati ...Applicant
Versus
State Of U.P. & Anr. ...Opp. Parties