Gayathri Baliga v. M/S.baliga Lighting Company (Since Dissolved)

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 01.04.2022 CORAM THE HONOURABLE MR.JUSTICE R.SURESH KUMAR W.P.No.7967 of 2022andW.M.P.Nos.7955 & 7956 of 2022 Gayathri Baliga... Petitioner Vs 1.Income Tax Officer, Non-Corporate Ward 3(1), Chennai Wanaparthy Block, No.121, Mahatma Gandhi Road, Nungambakkam, Chennai – 600 034.2.National Faceless Assessment Centre, Delhi Represented by Additional/Joint/Deputy/ Assistant Commissioner of Income Tax, Room No.401, 2[nd] Floor, E-Ramp, Jawaharlal Nehru Stadium, Delhi – 110 003. 3.M/s.Baliga Lighting Company (Since Dissolved) Represented by its erstwhile partner, Mr.Ramesh Baliga, No.63A, CP Ramaswamy Road, Alwarpet, Chennai – 600 018. 4.Deputy Commissioner of Income Tax, Non-Corporate Circle 3(1), Chennai Wanaparthy Block, No.121, Mahatma Gandhi Road, Nungambakkam, Chennai – 600 034.... RespondentsPrayer : Petition filed under Article 226 of the Constitution ofIndia, praying for issuance of a Writ of Certiorarified Mandamusto call for the records pertaining to the impugned noticeu/s.148dated31/03/2021havingDIN&NoticeNo.ITBA/AST/S/148/2020-21/1032044573(1) for Asst. Year 2017-18issued by the 1st respondent and the consequential proceeding andorder contained in the notice u/s.142(1) dated 14/03/2022having DIN:ITBA/AST/F/142(1)/2021-22/1040693142(1) for Asst.Year 2017-18 issued by the 2nd respondent and quash the same asit is against law and direct the 4th respondent to shift thepetitioner's share of taxes, which was paid by the 3rd respondentfirm (including TDS), to the account of the petitioner on the file of the 1st respondent and such shifted tax payments shouldbe considered as tax payments made by the petitioner on31/03/2017. For Petitioner: Mr.K.Ravi For Respondents : Mr.D.Prabhu Mukunth Arunkumar1, 2 & 4 Junior Standing Counsel ORDER The prayer sought for herein is for a writ of certiorarifiedmandamus to call for the records pertaining to the impugnednotice u/s.148 dated 31/03/2021 having DIN & NoticeNo.ITBA/AST/S/148/ 2020-21/1032044573(1) for Asst. Year 2017-18issued by the 1st respondent and the consequential proceeding andorder contained in the notice u/s.142(1) dated 14/03/2022having DIN:ITBA/AST/F/142(1)/ 2021-22/1040693142(1) for Asst.Year 2017-18 issued by the 2nd respondent and quash the same asit is against law and direct the 4th respondent to shift thepetitioner's share of taxes, which was paid by the 3rd respondentfirm (including TDS), to the account of the petitioner on thefile of the 1st respondent and such shifted tax payments shouldbe considered as tax payments made by the petitioner on31/03/2017. 2. In this writ petition, in respect of assessment year2017-18, the Revenue wanted to reopen it under Section 147 ofthe Income Tax Act, 1961 (in short 'the Act'). Notice underSection 148 of the Act was issued thereafter on disclosure ofthe reason by the Revenue for reopening objections had beenraised by the assessee and those objections had been rejected. 3. As against the same, this writ petition has been filedchallenging the rejection of objection as well as the noticeunder Section 148 of the Act. 4. Before this case was taken up for hearing, it seems that,on 30.03.2022 assessment order had been passed under 147 of theAct and this has been brought to the notice of this Court bothby the learned counsel for the petitioner as well as Mr.D.PrabhuMukunth Arunkumar, learned Standing Counsel appearing for therespondent Revenue. 5. Once an assessment order has been passed, this Courtsince has taken a consistent view that, the assessee can berelegated to go before the Appellate Authority for challengingthe assessment order. https://hcservices.ecourts.gov.in/hcservices/ 6. In this case also, since assessment order has beenpassed, the assessee has to go before the Appellate Authority. 4. Before this case was taken up for hearing, it seems that,on 30.03.2022 assessment order had been passed under 147 of theAct and this has been brought to the notice of this Court bothby the learned counsel for the petitioner as well as Mr.D.PrabhuMukunth Arunkumar, learned Standing Counsel appearing for therespondent Revenue. 5. Once an assessment order has been passed, this Courtsince has taken a consistent view that, the assessee can berelegated to go before the Appellate Authority for challengingthe assessment order. https://hcservices.ecourts.gov.in/hcservices/ 6. In this case also, since assessment order has beenpassed, the assessee has to go before the Appellate Authority. 7. However, Mr.K.Ravi, learned counsel appearing for thepetitioner has raised certain grounds, under which, he pointsout that, the Assessing Authority does not have any jurisdictionto invoke Section 147. Therefore, when there is no jurisdictionon the part of the Assessing Authority to reopen under Section147 of the Act and in this regard, objections raised since wererejected which are the subject matter in this writ petition, thesubsequent assessment orders cannot be directed to be assailedbefore the Appellate Authority, he contended. 8.I have considered the said stand taken by the learnedcounsel for the petitioner/assessee. 9. Insofar as the point raised by the petitioner with regardto the jurisdiction of the Assessing Authority to reopen underSection 147 itself is concerned, the same can also beadjudicated before the Appellate Authority. While filing appealagainst the assessment order, where, the jurisdiction point canbe raised as a preliminary issue. Once such preliminary issue israised, the same can be considered and decided on merits as apreliminary issue by the Appellate Authority before going to themerits of the impugned assessment order. 10. Since these arguments were made in respect of a similarcase, where also, assessment orders recently have been passedunder Section 147 of the Act and the same view was taken in thatcase also. Therefore, a similar order is to be passed in thiscase. Accordingly, this writ petition is disposed of with thefollowing directions: “That the petitioner is relegated to approach theAppellate Authority, i.e., Commissioner (Appeal) tofile appeal against the assessment order. While filingappeal, it is open to the petitioner to raise thejurisdiction point as a preliminary issue before theAppellate Authority and if such a preliminary issue israised, the same shall be considered and decided onmerits as a preliminary issue by the AppellateAuthority after giving an opportunity of being heardto the petitioner assessee before going into themerits of the assessment order. Once the preliminaryissue is decided, depending upon the outcome of thesame, the assessee as well as the Revenue can workouttheir remedy in accordance with law. 11. With these directions and observations, the petitioner since has been relegated to go before the Appellate Authority,this Writ Petition is disposed of accordingly. No costs. Sd/- Assistant Registrar(CS-V) //True Copy// Sub Assistant Registrar SglTo 1.Income Tax Officer, Non-Corporate Ward 3(1), Chennai Wanaparthy Block, No.121, Mahatma Gandhi Road, Nungambakkam, Chennai – 600 034. 2.The Additional/Joint/Deputy/ Assistant Commissioner of Income Tax, National Faceless Assessment Centre, Delhi Room No.401, 2[nd] Floor, E-Ramp, Jawaharlal Nehru Stadium, Delhi – 110 003. 3.Deputy Commissioner of Income Tax, Non-Corporate Circle 3(1), Chennai Wanaparthy Block, No.121, Mahatma Gandhi Road,Nungambakkam, Chennai – 600 034.+1cc to M/s.Hema Muralikrishnan, Advocate, S.R.No.22503 W.P. No.7967 of 2022 SR-II(CO)SB(15/06/2022)