Francis Maria Selvaraj v. Assistant Commissioner Of Income Tax,Circle

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED : 05.09.2019CORAM: THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAMand THE HONOURABLE MRS.JUSTICE R.THARANIW.A.(MD)No.906 of 2019and C.M.P.(MD)No.8157 of 2019 Francis Maria Selvaraj ... Appellant/Appellant Vs. Assistant Commissioner of Income Tax,Circle-1, 1[st] Floor, Popular Buildings,Mead Street, Nagercoil Range,Nagercoil-629 001,Kanyakumari District. ..Respondent/Respondent PRAYER: Writ Appeal is filed under Clause 15 of the Letter PatentAct, to set aside the order passed in W.P.(MD)No.1658 of 2018 dated09.07.2019. Prayer in WP(MD). 1658/ 2018 : Writ Petition is filed under Article 226 of theConstitution of India, praying this Court to issue Writ ofCertiorari calling for the records on the file of the Respondent inhis impugned proceedings made in PAN : for the AssessmentYear 2015-16 under section 143 (3) of the Income Tax Act, 1961 dated28.12.2017 quash the same as illegal and contrary to the scheme ofthe Act. For Appellant : Mr.J.Prasanna Kumar JUDGMENT [Judgment of this Court was made by T.S.SIVAGNANAM, J.] Heard Mr.J.Prasanna Kumar, learned counsel appearing for theappellant. 2. This appeal is directed against the order made in W.P.(MD)No.1658 of 2018 dated 09.07.2019. The writ petition was filedchallenging the order of assessment passed in terms of the IncomeTax Act, 1961 (in short 'Act') dated 28.12.2017 for the assessmentyear 2015-2016. The assessment was scrutiny assessed under Section143(3) of the Act. 3. In the counter affidavit filed by the respondent in thewrit petition, a specific plea has been raised stating that the writpetition is not maintainable and if the assessee aggrieved by anorder of assessment, the remedy available to the assessee is to filehttps://hcservices.ecourts.gov.in/hcservices/ an appeal under Section 256 of the Act. However, the writ Courtproceeded to take a decision on merits, which in our considered viewshould not have been done, since an alternative remedy under theIncome Tax Act is an prescribed procedure to be availed by theassessee. 4. The appellant / assessee has not established as to why thealternative remedy was not resorted to. In the absence of anyjustification to bypass the remedy, the writ petition could havebeen dismissed on the ground of maintainability. This would besufficient for us to dismiss the appeal. But however, since thelearned single Bench has rendered finding on the merits of thematter, it requires factual appraisal. We do not wish to curtailthe assessee's right to purse the appellate remedy available underthe Act. For the above reasons, we confirm the order passed by thelearned Single Bench not for the reasons set out by the learnedSingle Bench, but on the ground that the writ petition is notmaintainable as against the assessment order. Accordingly, thisWrit Appeal stands dismissed. However, we give liberty to theappellant to file an appeal before the Commissioner of Income Tax,Madurai within a period of fifteen days from the date of receipt ofa copy of this order. If the appeal is presented within such time,the Commissioner of Income Tax shall not reject the appeal on theground of limitation and decide the appeal on its own merits and inaccordance with law. In the light of such liberty granted, thefindings recorded by the learned single Bench in the impugned orderstand vacated. No costs. Consequently, connected miscellaneouspetition is closed. Sd/- Assistant Registrar (CS-III) // True Copy // Sub Assistant Registrar(CS) To Assistant Commissioner of Income Tax,Circle-1, 1[st] Floor, Popular Buildings,Mead Street, Nagercoil Range,Nagercoil-629 001, Kanyakumari District. +1 CC to Mr.F.DEEPAK, Advocate SR-85517.+1 CC to M/s.S.SRIMATHY, Advocate SR-85526. CS(20.09.2019) 2P 4C https://hcservices.ecourts.gov.in/hcservices/ ORDER MADE IN W.A.(MD)No.906 of 201905.09.2019