Emami Reality Limited v. Assessment Unit, Income Tax Department & Ors

22.11.2023PBSl. No.2. WPA 2116 of 2023 With CAN 3 of 2023 Emami Reality Limited VsAssessment Unit, Income TaxDepartment & Ors. Mr. J. P. Khaitan, Sr. Adv.Mr. Abhrotosh Majumder, Sr. Adv.Mr. Avra Mazumder,Mr. Ramesh Kr. Patodia,Mr. Pratyush Jhunjhunwala,Ms. Megha Agarwal,Mr. Kausheyo Roy. … For the Petitioner.Mr. Om Narayan Rai,Mr. Amit Sharma.…….for the respondents. Heard learned advocates appearing for theparties. By this writ petition, petitioner has challengedthe impugned assessment order dated 31[st] December,2022 under Section 143(3) read with Section 144B ofthe Income Tax Act, 1961, on several groundsincluding the jurisdiction of the Assessing Officer inpassing the order for intimating other agencies theinformation which came to his knowledge in course ofthe impugned assessment order. By the order of thisCourt dated 10[th] February, 2023, this writ petition wasadmitted and interim order was passed restraining theAssessing Officer from intimating the materials against the petitioner which came to its knowledge in course ofthe impugned assessment proceeding to other agenciesand this Court had clarified that only on this issue thewrit petition will be heard and not on any other issuesin challenging the impugned assessment order. Duringthe pendency of this writ petition, respondentAssessing Officer was granted liberty to proceed withthe penalty proceeding subsequent to the impugnedassessment order relating to the assessment year2021-22 and during the pendency of the writ petitionfinal penalty order has also been passed on 30[th] June,2023. Both the impugned assessment order andpenalty order are appellable before the appellateauthority under the statute and since this Court hadspecifically clarified that only on the issue indicatedhereinabove, this writ petition will be heard and not onthe merit of the assessment itself, I am inclined togrant liberty to the petitioner to file appeal against theimpugned assessment order as well as subsequentpenalty order before the appellate authority concernedwithin 15 days from date and if such appeals are filedwithin the time stipulated herein, the same shall beconsidered and disposed of on merit and in accordancewith law without raising the point of limitation.Respondent income tax authorities concerned shallnot take any coercive action for recovery of the demand arising out of the impugned assessment orderand subsequent penalty order for a period of fourweeks from date if petitioner files appeals within thetime stipulated herein. Petitioner shall be at liberty tomake appropriate application for any interim relief inaccordance with law before the appellate authorityagainst the demand in question arising out of theimpugned assessment order. Since petitioner could notfile any appeal against the impugned assessment orderafter filing this writ petition and in the meantime,penalty order has been passed, any realization ofamount arising out of the penalty order will dependupon the final order in the appeal to be filed. It isclarified that the appellate authority shall consider theapplication for any interim relief against the demandarising out of the impugned assessment order on itsown merit and in accordance with law without beinginfluenced by any observation in this order. So far as the part of the impugned assessmentorder involving information to the other agencies bythe Assessing Officer is concerned, I am of the view onreading Section 138 of the Income Tax Act along withthe order of the CBDT dated 21[st] July, 2020 (FileNo.225/53/2020/ITA.II) that the Assessing Officer isnot authorized under the law to take such action andaccordingly part of the impugned assessment order relating to the action of intimation to the informationto the other agencies is concerned, the same isquashed. So far as the part of the impugned assessmentorder involving information to the other agencies bythe Assessing Officer is concerned, I am of the view onreading Section 138 of the Income Tax Act along withthe order of the CBDT dated 21[st] July, 2020 (FileNo.225/53/2020/ITA.II) that the Assessing Officer isnot authorized under the law to take such action andaccordingly part of the impugned assessment order relating to the action of intimation to the informationto the other agencies is concerned, the same isquashed. The respondent authorities concerned shall openthe official portal within 48 hours from the date ofcommunication of this order to enable the petitioner tofile the appeals pursuant to this order of this Court.The appellate authority is requested to expedite theappeals to be filed. If petitioner fails to file the appealsand application for interim relief within the timestipulated herein, the interim protection granted inthis order shall have not any force. With this observation and direction, this writpetition being WPA 2116 of 2023 and the applicationbeing CAN 3 of 2023 are disposed of. ( Md. Nizamuddin, J.)