M/S. Lalan And Co v. The Income Tax Officer 24(1)(1)Mumbai And Ors

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1350 OF 2014 M/s. Lalan and Co. vs. The Income Tax Officer 24(1)(1)Mumbai and ors. ...Petitioner. ...Respondents. Mr. Mihir C. Naniwadekar for the Petitioner.Mr. Arvind Pinto for the Respondents. CORAM : M. S. SANKLECHA AND N.M.JAMDAR, JJ. O9 SEPTEMBER 2014 DATE : PC: This petition under Article 226 of the Constitution of India challenges : a)Notice dated 25 March 2013 issued under Section 148 of the Income Tax Act, 1961("the Act") seeking to reopen the assessment for A.Y. 2006-07; and b)The order dated 21 March 2014 passed by the Assessing Officer under Section 143(3) of the Act in respect of A.Y. 2006-07. 2)The petitioner has not filed any appeal to the Commissioner of Income Tax (Appeals) against the impugned order dated 21 March 2014. 3) The grievance of the petitioners is that without disposing of its objections to the revenue's reasons in support of the impugned notice dated 25 March 2013 the Assessment Order dated 21 March 2014 was passed. This is contrary to and in violation of the Supreme Court decision in the matter of GKN Driveshafts (India) Ltd. vs. Income Tax Officer and others 259 ITR 19. It is submitted that though the petitioner did attend the hearing before the Assessing Officer, it was only with a view to protest that no Assessment Order be passed until the objections are disposed of. Therefore, the impugned order is without jurisdiction. 4)In view of the above, before hearing the petitioner with regard to the validity of the impugned notices dated 25 March 2013, we called upon the revenue to address us upon the above grievance of the petitioner. 5)Mr. Pinto, learned Counsel appearing for the revenue submits that the petitioners were issued notices under Sections 142(1) and 142(2) of the Act. It is stated that the petitioners attended and participated in the hearing before the Assessing Officer. The Assessing Officer, thereafter, passed the impugned order dated 21 March 2014. It is submitted that the petitioners have an alternative remedy of an appeal under the Act and this Court should not exercise its writ jurisdiction. 6) We find that the petitioners have participated in the proceedings before the Assessing Officer. The petitioner acquiesced in the proceedings of assessment being taken even in the absence of objections to the impugned notice dated 25 March 2013 being disposed of. The petitioners having waited for the result of the Assessment proceedings by the impugned assessment order dated 21 March 2014, cannot now challenge the same on the ground that the same has been passed without disposing of the objections filed by them before this Court. The petitioners have an efficacious alternative remedy of an appeal under the Act, where all the above submissions could be urged and considered by the Appellate Authority. It is made clear that we have not examined the petitioner's contention that the reopening of assessment is bad, as the same would be a subject matter of the appeal under the Act. 7)In view of the above, we see no reasons to entertain the present petition. However, we extend the time to file an appeal against the impugned order dated 21 March 2014 and direct the Commissioner of Income Tax (Appeals) to entertain the petitioners' appeal in case the same is filed within two weeks from today. It is made clear that the revenue would not adopt any coercive proceedings for recovery for a period of 3-weeks from today to enable the petitioners to file stay application before the authorities under the Act. The stay application will be decided by the authorities on its own merits. 8)Petition is disposed of in the above terms. No order as to costs. ( N. M. JAMDAR, J.) (M.S. SANKLECHA, J.)