Asn v. Iti 345 Itr Page 71 The Revenue Will Not Adopt Any Coercive Proceedings Till The Disposal Of The Stay Application By The Tribunal

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2765 OF 2012 Congnizant India Pvt. Ltd....Petitioner.vs.The Assistant Collector of Income Taxand ors....Respondents. Mr. J. D. Mistri, Senior Counsel with Mr. Nishant Thakkar and Ms. Megha Bansal i/by PDS Legal for the Petitioner.Mr. Tejveer Singh for the Respondents. CORAM : M. S. SANKLECHA AND M.S. SONAK, JJ.DATE : 25NOVEMBER 2014 PC: This petition challenges : a) notice dated 25 March 2011 issued under Section148 of the Income Tax Act, 1961("the Act") seeking to reopen the assessment for Assessment Year 2007-08; b)draft Assessment Order dated 30 December 20911 passed by the Assessing Officer under Section 144C(1) of the Act; andc)order dated 4 September 2013 passed by the Dispute Resolution Panel(DRP). 2)The petitioner's grievance is that the impugned notice dated 25 March 2011 for reopening the assessment for Assessment Year 2007-08 is without jurisdiction. Consequently the draft assessment order dated 30 December 2011 and the impugned DRP order dated 30 December 2011 are also without jurisdiction. 3)We find that the petitioner has not challenged the impugned notice dated 25 March 2011 seeking to reopen the assessment and the reasons in support thereof when the notice was issued nor did the petitioner challenge the draft assessment order dated 30 December 2011 when it was passed in this Court as being without jurisdiction. At that time the petitioner chose to file its objection against the Draft Assessment Order with the DRP on various issues including the challenge to jurisdiction to issue the impugned notice and the Draft Assessment Order. 4)Thus the petitioner took a conscious decision to avail of the remedies available under the Act. Once the DRP passes an order giving directions under Section 144C(5) of the Act, the Assessing Officer is obliged to pass a final assessment order under Section 144C(13) of the Act in conformity with the directions of the DRP. This final assessment order is directly appeallable to Income Tax Appellate Tribunal (Tribunal) under Section 253(1)(d) of the Act. The grievance of the petitioner as raised in this petition is capable of being redressed by the Tribunal. Moreover, other issues raised before the DRP which would be a part of the final assessment order can also be considered by the Tribunal. In these circumstances, we see no reason to entertain this petition as the petitioner had availed of the remedy under the statute and the same is efficacious. 5)The petition had been filed on 23 October 2012. The Assessing Officer had not at that time passed any final assessment order consequent to the directions dated 4 September 2012 of the DRP. On 25 October 2012, this Court passed an order giving liberty to the Assessing Officer to give effect to directions given by the DRP in its order dated 4 September 2012 and pass a final assessment order. The order dated 4 September 2012 also directed the Assessing Officer not to serve a copy of the assessment order upon the petitioner. The revenue is now directed to serve a copy of the final Assessment Order upon the petitioner. However, from the time the revenue serves a copy of the order upon the petitioner, for a period of eight weeks therefrom no coercive proceedings will be taken against the petitioner. In case, the petitioner files an appeal and a stay application before the Tribunal then in terms of the decision of this Court in UTI Mutual Fund vs. ITI 345 ITR Page 71 the Revenue will not adopt any coercive proceedings till the disposal of the stay application by the Tribunal. 6)All contentions of the parties are left open. 7)With the above directions, petition is dismissed. No order as to costs. (M.S. SONAK, J.) (M.S. SANKLECHA, J.)