Apot/229/2023 Ia No: Ga/1/2023 Karnani Promoters Private Limited v. Income Tax Officer Ward 7(1) And Ors

OD-12 IN THE HIGH COURT AT CALCUTTACIVIL APPELLATE JURISDICTIONORIGINAL SIDE APOT/229/2023IA NO: GA/1/2023KARNANI PROMOTERS PRIVATE LIMITEDVSINCOME TAX OFFICER WARD 7(1) AND ORS. BEFORE : THE HON’BLE THE CHIEF JUSTICE T.S. SIVAGNANAMAndTHE HON’BLE JUSTICE HIRANMAY BHATTACHARYYADate : 23[rd] August, 2023 Appearance :Mr. Saurabh Bagaria, Adv.Mr. Rites Goel, Adv.…for appellantMr. Tilak Mitra, Adv.…for respondent The Court : - This intra Court appeal by the writ petitioner is directed againstthe order dated 20.06.2023 in WPO/1225/2023. The said writ petition was filedchallenging the order dated 1.7.2022 under Section 148A(d) of the Income Tax Act,1961 (the Act) for the assessment year 2016-17. During the pendency of the writpetition the assessment order has been passed. Mr. Saurabh Bagaria, learned Advocate appearing for the appellant wouldstrenuously contend that the judisdictional defect in the entire reopening proceedinginasmuch as approval for reopening was not granted by the competent authority, whichwill be the Principal Chief Commissioner of Income Tax, but it has been granted by thePrincipal Commissioner of Income Tax, which aspect was specially pointed out by theassessee in their reply to the show-cause notice. Nevertheless, the assessing officer hasnot dealt with the point nor the defect had been cured. Therefore, the assessment orderhas to be set aside and the matter has to be sent back to the department to proceed inaccordance with law. Mr. Amit Sharma, learned Advocate appearing for the respondent submits that even assuming that approval was granted only by the PrincipalCommissioner of Income Tax and not by the Principal Chief Commissioner of IncomeTax the same shall be a procedural error and at best it can be a curable defect. In anyevent, the assessment order having been passed though during the pendency of the writpetition as there was no interim order in the writ petition. In our view, the assesseeshould exhaust the appellate remedy available under the Act without bypassing thesame as appellant authority would be entitled to examine the aspect by calling for thenecessary records. In the result, the appeal stands disposed of by directing theappellant to file an appeal before the appellate authority namely the Commissioner ofIncome Tax, (Appeals) and if such appeal is filed within a period of 30 days from thedate of receipt of the server copy of this order, the appeal shall not be rejected on theground of limitation. The appellant is entitled to canvass the issue regarding the validityof the approval granted by the Principal Commissioner of Income Tax. Apart from othergrounds on the merits of the assessment and the appellate authority while consideringthe appeal petition shall decide the validity of the approval granted as first amongstseveral issues which may arise for consideration. The application is disposed of. (T.S. SIVAGNANAM) CHIEF JUSTICE (HIRANMAY BHATTACHARYYA, J.)