M/S. Shiv Mahima Township Pvt. Ltd v. Income Tax Officer & Others

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCHAT JAIPUR. ORDER S.B. CIVIL WRIT PETITION NO. 2790/2014WITHS.B. CIVIL MISC. STAY APPLICATION NO. 2711/2014 M/S. SHIV MAHIMA TOWNSHIP PVT. LTD.VS. INCOME TAX OFFICER & OTHERS. DATE OF ORDER : 09.02.2015 HON'BLE MR. JUSTICE MOHAMMAD RAFIQ Mr. Nirmal Kumar Goyal, for the petitioner.Mr. Anuroop Singhi, for the respondents. BY THE COURT: This writ petition cannot be now proceeded against showcause notice date 14.03.2013 because during pendency of writpetition, assessment order has itself been passed on 13.03.2014.Although the petitioner has sought to amend the writ petition tochallenge the assessment order, but the order of assessment is opento challenge in appeal before Commissioner of Income Tax(Appeals). Learned counsel for the petitioner has submitted that theshow cause notice can be challenged directly before this Court andthe petitioner has catena of judgments of the Hon'ble Supreme Courtand various High Courts to support its contentions on merits insupport of such challenge. It is contended that the petitioner sentSMS to Income Tax Officer, Shri K.R. Sharma, on 13.03.2014 at 1.28 P.M. informing him about passing of interim order dated 12.03.2014requiring him not to finalise assessment till 21.03.2014. Mr. Anuroop Singhi, learned counsel appearing on behalfof the respondents-revenue has invited attention of the Court towardscommunication dated 10.03.2014, served on Income Tax Officerconcerned by representative of the petitioner namely D. Ostwal &Associates, wherein no mention about filing of writ petition wasmade. Reference to another communication of same parties dated12.03.2014 has also been made which has been served upon IncomeTax Officer concerned on 13.03.2014 wherein also no mentionwhatsoever about filing of present writ petition or even the fact that itis coming up for arguments on 21.03.2014 has been made.According to learned counsel for the respondents-revenue, factumabout passing aforesaid interim order came to the knowledge of theIncome Tax Officer concerned on 19.03.2014 when copy of the saidorder was provided. That fact that communication of interim orderwas received by ITO concerned by S.M.S. on 13.03.2014 has beendisputed. The issue for the purpose of deciding validity of showcause notice may not be gone into by this Court, because show causenotice eventually culminated into passing of the assessment orderand undeniably remedy of appeal against the assessment order isavailable to the petitioner under Section 246-A of the Income Tax Act.All the issues which the petitioner has raised in assailing the validityof the show cause notice in the present writ petition can be raisedbefore the appellate authority as well. Obviously, the petitionerwould be at liberty to cite all the judgments, which he seeks to rely before this Court. If any appeal is filed by the petitioner now within30 days, Commissioner of Income Tax(Appeals) concerned is directedto decide the appeal within three months from the date of filingthereof. With the aforesaid observation and direction, writ petitionstands disposed of. Stay application also stands disposed of. (MOHAMMAD RAFIQ),J. Manoj, S.NO.93. “All corrections made in the judgment/order have been incorporated in thejudgment/order being emailed.” MANOJ NARWANI Personal Assistant.