Falcon Retreat Private Limited Rep. Aut. Rep. … Petitionersanju Gadekar v. The Additional Commissioner Of Income Tax

Andreza IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 529 OF 2022 Falcon Retreat Private Limited Rep. Aut. Rep. … PetitionersAnju Gadekar Versus The Additional Commissioner of Income Tax Thr. Principal Chief Commissioner of Income …Respondents Tax & 4 Ors. Mr. A. D. Bhobe, Advocatewith Ms. S. Shaikh, Advocate for thePetitioners. Ms. Susan Linhares, Standing Counsel for the Revenue-Respondentnos.1, 2 and 2. Ms. Amira Razaq, Advocatefor the Respondent No.4-OfficialLiquidator. Mr. Pravin Faldessai, Deputy Solicitor General of Indiafor theRespondent no.5. _______________________ CORAM:G. S. KULKARNI & BHARAT P. DESHPANDE, JJ.DATED:24 November, 2022 _______________________ ORAL ORDER 1. We have heard Mr. Bhobe, learned Counsel for the petitioners,Ms. Susan Linhares, learned Standing Counsel for the Respondent nos. 1, 2 and 3-Revenue, Ms. Amira Razaq, learned Counsel for the Respondent no.4-Official Liquidator and Shri Faldessai, learnedDeputy Solicitor General of India for the Respondent no. 5. 2. The challenge in this petition filed under Article 226 of theConstitution, is to the four assessment orders dated 23 March, 2022,passed by the Respondent no.1 being assessment orders under Section147 read with Sections 144 and 144-B of the Income Tax Act, 1961,(for short, the 'IT Act'). Consequent to the said assessment orders,notices are issued to the petitioners dated 11 August, 2022, so as toinitiate penalty/recovery proceedings. Such notices are issued underSection 274 read with Section 271F of the IT Act. These notices arealso challenged in the present proceedings. The assessment orderspertain to the four assessment orders of the year 2014-2015, 2015-2016, 2016-2017 and 2017-2018. It would be appropriate to notethe prayers as made in the Writ Petition, which read thus : “a) Issue a Writ of Certiorari or Writ in the nature ofCertiorari or any other appropriate Writ, order ordirection quashing and setting aside the ImpugnedOrders dated 23/3/2022 bearing DIN Nos. ITBA / AST /S /147 / 2021-22 / 1041388030(1); ITBA/AST/S/147/202122/1041392267(1); ITBA / AST / S / 147 / 2021-22 /1041392449(1); ITBA / AST / S / 147 / 2021-22 /1041392840(1) and the Impugned Penalty Notices dated11 August 2022 bearing DIN & Letter No.ITBA/PNL/F/17/2022-23/1044607813(1); ITBA / PNL / F / 17/2022- 23/1044608656(1); ITBA/PNL/F/17/2022-23/1044616019(1) and 16 August 2022 bearing DIN &Letter No. ITBA/PNL/F/17/2022-23/1044670634(1)issued by respondent nos.1 b) In the alternative the petitioners prays for issue of aWrit of Certiorari or a Writ in the nature of Certiorari orany other appropriate Writ, order or direction quashingthe Impugned dated 23 March 2022 and the ImpugnedPenalty Notices dated 11 August 2022 and 16 August2022 and remand the reassessment proceedings beforerespondent nos.1 and/or 2 for de novo consideration onmerits after giving adequate opportunity of hearing to thepetitioner in compliance with the principles of naturaljustice. c) In the alternative to Prayer (a) and (b) for issue aWrit of Mandamus or a Writ in the nature of Mandamusor any other appropriate Writ, order or direction,directing the respondents to grant access to the petitionerto the e-filing portal in relation to the Former PAN so asto enable the petitioner to access the complete assessmentrecords and leave to file appeals electronically orphysically appeals against the Impugned Orders; and fora direction to the respondents/ appropriate authorities, totake such appeals on record and a further direction to therespondents to make available physical set of the entireassessment records to the petitioner. d) During the pendency of these proceedings grant anorder or direction staying the operation andimplementation of the Impugned Orders dated23/3/2022, 11/8/2022 and 16/8/2022. e) Pass such and other reliefs as this Hon,ble Courtdeems fit and proper. f) Costs of this petition.” d) During the pendency of these proceedings grant anorder or direction staying the operation andimplementation of the Impugned Orders dated23/3/2022, 11/8/2022 and 16/8/2022. e) Pass such and other reliefs as this Hon,ble Courtdeems fit and proper. f) Costs of this petition.” 3. The challenge of the petitioner to the impugned assessmentorders as mounted in the present proceedings is basically on thepremise that the petitioner, which is a private limited Company, wasdirected to be wound up by an order passed by this Court dated 26June, 2009, in the proceedings of Company Petition No.19 of 2006,instituted by one “Shekhar Electricals”, one of the creditors of thepetitioner. The case of the petitioner is that there were borrowings bythe petitioner from the Economic Development Corporation and theState Bank of India. It is contended that in the further proceedingsalmost after a period of nine years, the winding up order came to berecalled by order dated 3 May, 2018, passed by this Court. The caseof the petitioner is that the assessment in question pertain to theperiod, during which the winding up proceedings against thepetitioner was at large and subsisting when the petitioner was underthe control of the Official Liquidator-respondent no.4. Thepetitioners have set out various grounds to contend as to why theimpugned orders would be required to be held to be bad, illegal andprejudicial to the petitioners considering the several circumstances,as also a circumstance that entire proceedings are being taken up on the permanent account number of the petitioners which wasprevailing at the relevant point of time. 4. The petitioner has contended that the business of the petitionerwas admittedly at a stand still and the only relevant amounts whichthe Revenue has taken to be relevant were the amounts which wereeither lying in the escrow account and certain amounts which weredeposited with the State Bank of India. It is contended that on suchbasis, the Revenue has inter alia added the income at the hands of thepetitioners stating that the State Bank of India had deducted tax atsource on the interest. 5. Ms. Razaq, the learned Counsel for the Official Liquidator hasdisputed the contention as urged on behalf of the petitioner tocontend that the statement of affairs itself was not filed before theOfficial Liquidator and which ought to have been filed in respect ofthe position as it stood on the date of winding up of the Company. She has submitted that also no records were furnished to the OfficialLiquidator and no funds of the Company were lying with the OfficialLiquidator. She would also submit that in so as far as the OfficialLiquidator is concerned, the Official Liquidator has acted in accordance with law and the contentions and/or any allegations ofthe Official Liquidator ought not to be accepted. 6.The Revenue is represented by Ms. Linhares, who has submittedthat the impugned orders as also the penalty action as been initiatedagainst the petitioner is as per law. 7.We have heard the learned Counsel for the parties. We havealso perused the record and the impugned orders. We are of theopinion that the petitioner is well conscious as clearly seen fromprayer clause (c), that an alternate remedy of appeal is available tothe petitioner which needs to be filed before the Commissioner ofIncome Tax (Appeals) as per the provisions of Section 246 of theIncome Tax Act. However, as the immediate concern of the petitioneris with regard to the penalty and recovery proceedings thereof, thepresent petition was moved contending that the alternate remedy isnot an efficacious remedy. However, considering the peculiar facts ofthe case, we are of the opinion that the petitioner needs to avail of thealternate remedy as available to the petitioner in law i.e. by filingappeal before the Commissioner of Income Tax (Appeals). 8.Insofar as the apprehension of the petitioner in regard to thepenalty/recovery proceedings are concerned, in our opinion, it wouldbe appropriate that the said proceedings shall not be taken forwardtill the Appellate Authority decides the appeals. 9.We, accordingly, dispose of the petition with the followingorder : ORDER (i) The petitioner is permitted to file an appealassailing the impugned re-assessment ordersbefore the Appellate Authority (Commissioner ofIncome Tax (Appeals)). The Appeals be filedwithin a period of two weeks from today. If thesame are filed, the Appellate Authority shallmake an endeavour to dispose of the appeals asexpeditiously as possible and within a period ofthree months from the date of the appeals beingfiled. (ii) All contentions of the parties on the merits ofthe appeals are expressly kept open. (iii) Till the appeals are decided, considering thepeculiar facts of the case and without this orderbeing treated precedent in any manner whatsoever, the penalty/recovery proceedingsagainst the petitioner shall not proceed. (iv) The petitioner is directed to co-operate inthe early disposal of the appeals. (v) It is clarified that our directions that therecovery proceedings against the petitioner shallnot proceed till the disposal of the appeals, shallnot be construed to be any expression on themerits of the rival contentions. The AppellateAuthority shall decide the appeals/proceedingson its own merits and without being influencedby such direction. 10.At this stage, it is informed by the learned Counsel for theRevenue, that access to the e-filing portal for the filing of returnsshall be provided to the petitioner. 11.Disposed of in the above terms. No costs. BHARAT P. DESHPANDE, J G. S. KULKARNI, J ANDREZA Digitally signed by ANDREZA PEREIRA PEREIRADate: 2022.11.24 17:48:24 +05'30'PEREIRA PEREIRADate: 2022.11.24 17:48:24 +05'30'