By Advs. Sri. Harisankar v. Menon Smt. Meera V. Menon Sri. R. Sreejith Smt. K. Krishna Smt. Parvathy Menon

IN THE HIGH COURT OF KERALA AT ERNAKULAMPRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGHMONDAY, THE 22 DAY OF JANUARY 2024 / 2ND MAGHA, 1945 WP(C) NO. 10407 OF 2023 PETITIONER: ASSEENA BEEGAM MOHAMED ALI,BEEVA ANACHAL, MANNAM P. O., NORTH PARUR, ERNAKULAM, PIN – 683520. BY ADVS. SRI. HARISANKAR V. MENON SMT. MEERA V. MENON SRI. R. SREEJITH SMT. K. KRISHNA SMT. PARVATHY MENON RESPONDENTS: 1DEPUTY COMMISSIONER OF INCOME TAX,I. S. PRESS ROAD, KOCHI, PIN – 682018. INTERNATIONAL TAXATION CIRCLE, C. R. BUILDINGS, 2DISPUTE RESOLUTION PANEL,DRP-2, KENDRIYA SADAN, 4TH FLOOR, A WING, KORAMANGALA, BANGALORE, PIN – 560034. BY ADVS. SRI. P. G. JAYASHANKAR SRI. G. KEERTHIVAS GIRI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON22.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DINESH KUMAR SINGH, J. -------------------------- W.P.(C) No. 10407 of 2023 ------------------------- Dated this the 22[nd] day of January, 2024 JUDGMENT 1.Petitioner is a Non Resident Indian and the petitioner is aeligible assessee under Section 144B of the Income Tax Act forfinalising the assessment order. The petitioner filed return of herincome for the assessment year 2014-15 on 13.08.2014 declaring thetotal income at Rs. 41,92,510/-. 2.A notice under Section 148 of the Income Tax Act followed bynotices under Section 142 (1) were issued by the 1[st] respondent.Draft assessment order under Section 144C dated 19.03.2022 wasserved on the petitioner proposing to finalise the assessment bymaking additions against long term capital gains, in respect of thesale of the properties during the financial year relevant to theassessment year 2014-15. The note along with the draft assessmentorder would read as under; “Note: Since the assessee is a non-resident, as per the provisions of Section 144C of the Income tAxAct, 1961, this draft assessment order is passed andis sent to the assessee for filing objections, if any,before the Dispute Resolution Panel within 30 days form the receipt of this draft assessment order oraccepting the adjustment(s) proposed by this draftassessment order. If either of these procedures is notcomplied with, it would be deemed as acceptanceand the draft assessment order would become finaland necessary order would be passed.” 3. The petitioner filed objection to the draft assessment order on 18.04.2022, well within the time of thirty days before the DisputeResolution Panel (hereinafter referred to as ‘DRP’). Under Section144C (12) of the Income Tax Act, the DRP has nine months time toconsider the objection and give direction to the assessing authorityand, after the Dispute Resolution Panel issues direction on objectionto the draft assessment of an assessee, the assessing authority isrequired to finalise assessment order as per direction of DRP withina period of thirty days from the end of the month. 4.While the Dispute Resolution Panel was still considering theobjection to the draft assessment, the assessing authority hasfinalised the impugned assessment order on the ground that thepetitioner had not filed objection to the draft assessment order.After the assessment authority has finalised the assessment order,the Dispute Resolution Panel had given direction in Exhibit P-4 dated07.12.2022. 5.The learned Counsel for the petitioner submits that the finding 4.While the Dispute Resolution Panel was still considering theobjection to the draft assessment, the assessing authority hasfinalised the impugned assessment order on the ground that thepetitioner had not filed objection to the draft assessment order.After the assessment authority has finalised the assessment order,the Dispute Resolution Panel had given direction in Exhibit P-4 dated07.12.2022. 5.The learned Counsel for the petitioner submits that the finding recorded by the assessing authority in the impugned assessmentorder that no objection had been filed against the draft assessmentorder is against the record. In the notice issued to the petitioneralong with the draft assessment order, the petitioner was requiredto file objection to the draft assessment order only before theDispute Resolution Panel. There was no such direction to fileobjection before the assessing authority as well. It is furthersubmitted that every pleading/document is available in the websiteas these are the online proceedings, and the objection filed by thepetitioner to the draft assessment order was also available on theweb portal. Therefore, the finding of the assessment authority thatno objection was filed to the draft assessment order is palpablyincorrect and against the law. 6.Mr. Keerthivas Giri, learned Standing Counsel for the IncomeTax Department, on the other hand submits that Section 144C(2)mandates an assessee to file objection to the draft assessmentorder before the Dispute Resolution Panel as well as the assessingauthority. It is therefore submitted that even if it was notmentioned in the notice to file objection before the assessingauthority as well, it was incumbent on the petitioner/assessee to have filed objection before the assessing authority as well. Whenthere was no objection before the assessing authority, the assessingauthority was of the opinion that no objection had been filed and,therefore, the final assessment order came to be passed. 7.I have considered the submissions. If the assessing authority who issued the notice himself did not mention that the objection tothe draft assessment order was to be filed before the DisputeResolution Panel as well as the assessing authority, presuming thatthe petitioner must have known that the objection was required tobe filed before the assessing authority is a very high expectation bythe assessing authority from the assessee. The objection to thedraft assessment order was filed before the Dispute ResolutionPanel, and the said objection must be available on the web portaland, therefore, the assessing authority recording that no objectionwas filed to the draft assessment order is incorrect. The assessingauthority has proceeded in a highly technical manner. The DisputeResolution Panel has already considered the objections and givendirection in Exhibit P-4 to the assessing authority. 8.Mr. Keerthivas Giri, learned Standing Counsel for the IncomeTax Department submits that the assessment order is appealableunder the provisions of 246A of the Income Tax Act, and the petitioner could have taken every objection to the assessment orderbefore the appellate authority in the appeal. Instead of filing thestatutory appeal, the petitioner has approached this Court underArticle 226 of the Constitution of India. This writ petition is not evenotherwise maintainable and liable to be dismissed on the ground ofavailability of alternative remedy. 8.Mr. Keerthivas Giri, learned Standing Counsel for the IncomeTax Department submits that the assessment order is appealableunder the provisions of 246A of the Income Tax Act, and the petitioner could have taken every objection to the assessment orderbefore the appellate authority in the appeal. Instead of filing thestatutory appeal, the petitioner has approached this Court underArticle 226 of the Constitution of India. This writ petition is not evenotherwise maintainable and liable to be dismissed on the ground ofavailability of alternative remedy. 9.In view of the facts set out, I am of the considered view thatthe impugned assessment order wherein the assessing authority hadobserved that no objection to the draft assessment order was filedby the assessing authority is palpably wrong. The assessment ordergets vitiated for incorrect findings. I, therefore, set aside theassessment order and remand the matter back to the assessingauthority to consider the direction issued by the Dispute ResolutionPanel in Exhibit P-4 and pass a fresh assessment order in accordancewith the law. Thus, the present writ petition is allowed in aforesaidterms. Svn Sd/- DINESH KUMAR SINGH JUDGE APPENDIX OF WP(C) 10407/2023 PETITIONER’S EXHIBITS