Deepak Kochhar … v. Deputy Commissioner Of Income Tax, Circle 3(2)(2) And Others …

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTIONWRIT PETITION NO.261 OF 2020 Deepak Kochhar…PetitionerVs.Deputy Commissioner of Income Tax, Circle 3(2)(2)and others…Respondents Mr. J. D. Mistry, Senior Advocate a/w. Mr. Madhur Agarwal i/b. Mr. A.K. Jasani for Petitioner.Mr. Sham Walve a/w. Mr. Pritesh Chatterjee for Respondent Nos.1 and2. CORAM : UJJAL BHUYAN &MILIND N. JADHAV, JJ.DATE :JANUARY 24, 2020 P.C.: Heard Mr. Mistry, learned senior counsel assisted by Mr. Agarwal,learned counsel for the petitioner and Mr. Walve, learned standingcounsel Revenue for respondent Nos.1 and 2. 2.By filing this petition under Article 226 of the Constitution ofIndia, petitioner has assailed legality and validity of the impugnedassessment order dated 28.12.2019 passed by the Assessing Officer i.e.,respondent No.1 under Section 143(3) of the Income Tax Act, 1961(briefly “the Act” hereinafter) read with Section 147 of the said Act. 3.The assessment pertains to the assessment year 2012-13. 4.Mr. Walve, learned standing counsel raises a preliminaryobjection regarding availability of alternative remedy which thepetitioner has not availed. Therefore, he submits that petitioner may berelegated to the forum of alternative remedy. 28.12.2019 and submits that a sum of Rs.394,46,61,260.00 was added tothe income of the assessee under Section 56(1) of the Act as benefitreceived on account of receipt of share premium by the assessee by wayof getting control and management of M/s. NRPL during the relevantprevious year. He submits that this addition was made without anynotice to the petitioner and without hearing the petitioner. That apart, theaddition is devoid of any deliberation by the Assessing Officer leading tosuch addition. 5.1He submits that when there is absolute violation of the principlesof natural justice, question of availing the alternative remedy would notarise. However on a query by the Court, he submits that petitioner is notshying away from contesting this addition and will file an appeal asprovided under the Statute. 6.Mr. Walve submits that it is not correct to say that there isviolation of principles of natural justice inasmuch as ample opportunitywas granted to the petitioner. 7.After hearing learned counsel for the parties and on dueconsideration, Court is of the view that petitioner may file appeal underSection 246-A of the Act before the first appellate authority against theassessment order dated 28.12.2019 within a period of four weeks fromtoday. It is also open to the petitioner to file an application for stay alongwith the appeal in which event the same shall be considered by theappellate authority in accordance with law. 8.Ordered accordingly. 9.To enable the petitioner to avail his remedy as provided under theStatute and till such time, the application for stay is decided by the firstappellate authority, the assessment order dated 28.12.2019 shall be keptin abeyance. 10.Needless to say we have not expressed any opinion on merit andall contentions are kept open. It is also made clear that if the appealorder goes against the petitioner, the same shall also be kept in abeyancefor a period of two weeks from the date of receipt of the order to enablethe petitioner to avail the statutory remedy as provided under the Act. 11.Writ petition is disposed of. (MILIND N. JADHAV, J.) (UJJAL BHUYAN, J.) Minal Parab