M/S.unifac Management Services(India) Private Limited, Rep.by Its Managing Director R.saravanan v. The Deputy Commissioner Of Incometax, Corporation Circle 3(2), Office Ofthe Deputy Commissioner Of Incometax, Room

In the High Court of Judicature at Madras Dated : 09.1.2019 Coram : The Honourable Mr.Justice T.S.SIVAGNANAM The Honourable Mr.Justice N.SATHISH KUMAR M/s.Unifac Management Services(India) Private Limited, rep.by its Managing Director R.Saravanan...Appellant Vs The Deputy Commissioner of IncomeTax, Corporation Circle 3(2), Office ofthe Deputy Commissioner of IncomeTax, Room No.414, 4[th] floor, Wanaparthy Block, Aayakar Bhavan,No.121, MG Road, Chennai-34....Respondent APPEAL under Clause 15 of the Letters Patent againstthe order dated 23.10.2018 made in W.P.No.5264 of 2018. Prayer in W.P.No.5264 of 2018: Writ Petitions under Article 226 of the Constitution ofIndia for issuance of a Writ of Certiorari to Call for therecords relating to respondent's order under Section 143(3)of the Income Tax Act dated 29.06.2017 in respect of thepetitioner and consequential letter of the respondent dated16.2.2018 and quash the same. Judgment was delivered by T.S.SIVAGNANAM,J We have heard Mr.R.Sakthivel, learned counsel for theappellant and Mr.J.Narayanasamy, learned Senior StandingCounsel accepting notice for the respondent. 2. This appeal is directed against the order passed inW.P.No.5264 of 2018 dated 23.10.2018. 3. In the said writ petition, the appellant challengedthe order of assessment under Section 143(3) of the Income https://hcservices.ecourts.gov.in/hcservices/ Tax Act, 1961 (for short, the Act) dated 29.6.2017. Thelearned Single Judge dismissed the said writ petition onmerits. Admittedly, as against the order of assessmentunder Section 143(3) of the Act, an appeal lies to theCommissioner of Income Tax (Appeals) [for brevity, the CIT(A)] in terms of Section 246A of the Act. In our consideredview, the appellant should not have by-passed the remedy,as the issues involved in the instant case are mixedquestions of fact and law, which, obviously, a Writ Courtcannot go into. 4. The learned counsel for the appellant has attemptedto persuade us to entertain the appeal by referring to thedecision of a Division Bench of this Court in the case ofCIT Vs. M/s.Industrial Security & Intelligence IndiaPrivate Limited [TCA.Nos.584 and 585 of 2013 dated24.7.2015]. 5. Our prima facie view is that a writ petition is notmaintainable and the appellant ought to have pursued theappeal remedy provided under the Act. Furthermore, withoutconsidering the factual position, the law cannot beapplied. 6. Faced with this situation, Mr.K.Sakthivel, learnedcounsel for the appellant seeks permission to withdraw thewrit petition and requests that the appellant may begranted time to avail the appeal remedy before the CIT(A).He has also made an endorsement in the bundle today to thateffect. 7. We have heard Mr.J.Narayanasamy, learned SeniorStanding Counsel for the Revenue on the above submission. 8. In our considered view, the question relating tomaintainability is an issue between the appellant/writpetitioner and the Court. Therefore, the Court will be welljustified in refusing to entertain the matter, for which,the concession or consent of the respondent is unnecessary. 9. Considering these facts, we grant permission to theappellant to withdraw the said writ petition namelyW.P.No.5264 of 2018 as well as this appeal namelyW.A.No.2854 of 2018. We also grant liberty to the appellantto file the appeal before the CIT(A) having jurisdictionover the matter. Accordingly, the writ petition as well asthe writ appeal are dismissed as withdrawn. We grant 30days' time from the date of receipt of a copy of thisjudgment to file the appeal before the CIT(A) after takingnote of the fact that immediately after the assessment wasover and the notice was received, the appellant moved theWrit Court. We make it clear that in the event of filing of 9. Considering these facts, we grant permission to theappellant to withdraw the said writ petition namelyW.P.No.5264 of 2018 as well as this appeal namelyW.A.No.2854 of 2018. We also grant liberty to the appellantto file the appeal before the CIT(A) having jurisdictionover the matter. Accordingly, the writ petition as well asthe writ appeal are dismissed as withdrawn. We grant 30days' time from the date of receipt of a copy of thisjudgment to file the appeal before the CIT(A) after takingnote of the fact that immediately after the assessment wasover and the notice was received, the appellant moved theWrit Court. We make it clear that in the event of filing of an appeal by the appellant before the CIT(A), the AppellateAuthority shall entertain the appeal without reference tothe question of limitation and decide the same on meritsand in accordance with law without, in any manner,influenced by any of the observations made by the learnedSingle Judge in the said writ petition. It is also madeclear that the findings rendered by the learned SingleJudge in his order dated 23.10.2018 will not affect therights of the appellant in pursuing the appeal before theCIT(A) if such appeal is filed within a period of 30 daysfrom the date of receipt of a copy of this judgment. Nocosts. Consequently, the connected CMP is also dismissed. Sd/- Assistant Registrar(CS) //True Copy// Sub Assistant Registrar ToThe Deputy Commissioner of Income Tax, Corporation Circle 3(2), Office of the Deputy Commissioner of Income Tax, RoomNo.414, 4[th] floor, Wanaparthy Block, Aayakar Bhavan, No.121,MG Road, Chennai-34. +1cc to Mr. R.Sakthivel, Advocate SR.No. 2362RS WA.No.2854 of 2018 &CMP.No.23727 of 2018A.SK(25/02/2019)