Po & Ps Adityapur, Distt. Saraikela Kharswan … … v. The Principal Commissioner Of Income Tax, Ranchi

IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (T) No. 6259 of 2018 M/s Badrinath Sales Pvt. Ltd., a Company incorporated under the Companies Act 1956, having its office at Main Road, Adityapur, Saraikela Kharswan, PO & PS Adityapur, Distt. Saraikela Kharswan through one of its Directors Sri Krishna Agarwal, S/o Sri Maliram Agarwal, R/o Sanjay Nagar, Majhi Tola, Adityapur, near A.S.N. School, PO & PS Adityapur, Distt. Saraikela Kharswan … … Petitioner Versus 1.The Principal Commissioner of Income Tax, Ranchi having its office at – 5, Main Road, PO & PS Chutia, Distt. Ranchi office at – 5, Main Road, PO & PS Chutia, Distt. Ranchi 2.The Commissioner of Income Tax, Jamshedpur having its office at 2 Bagmati Road, PO Jamshedpur (Head Office), PS Bistupur, Town Jamshedpur, Distt. East Singhbhum office at 2 Bagmati Road, PO Jamshedpur (Head Office), PS Bistupur, Town Jamshedpur, Distt. East Singhbhum 3.The Deputy Commissioner of Income Tax, Circle-2, Jamshedpur, PO & PS Bistupur, Distt. East Singhbhum Jamshedpur, PO & PS Bistupur, Distt. East Singhbhum … … Respondents ---- CORAM : HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI ----- For the Petitioner : Mr. Nitin Kr. Pasari, Advocate For the Respondents : Mr. Rahul Lamba, Advocate ----- Order No. 04 : Dated20[th]February, 2019 Aniruddha Bose, CJ. The present writ petition has been instituted by the writ petitioner assessee questioning, in substance, the re-assessment order passed under Section 147 read with Section 148 of the Income Act, 1961 for the Assessment Year 2012-13. The writ petition was instituted on 7[th] December, 2018 at the time of reopening of assessment after filing of objection against the notice of the re-assessment. During pendency of the writ petition, order has been passed on 20[th] December, 2018 in such proceeding. This order has been brought on record by way of interlocutory application registered as I.A. No. 308 of 2019. In the interlocutory application the said assessment order is also under challenge along with initiation of penalty proceeding under Section 271(1)(c) of the Act. The petitioner, in fact, has asked for amendment of the writ petition. On behalf of the Income Tax Authorities, Mr. Lamba has raised a preliminary point that the re-assessment order is an appealable order under Section 246(1)(b) of the Act and hence the writ petition ought not to be entertained. Mr. Pasari’s stand on the other hand is that the writ petition was instituted at a time when the re-assessment order was not there and he has relied on a decision of the Honb’e Supreme Court in the case of Income Tax Officer Ward No. 16(2) Vs. M/s Tech Span India Private Ltd. & Anr. reported in (2018) 6 SCC 685. His main case is that the notice of re-assessment did not record any cogent reason which could be foundation of belief of the assessing officer that any sum had escaped assessment. Secondly his submission is that the proceeding was time barred and the re-assessment was sought to be made only on the basis of change of opinion. According to him, the same issue was examined in the original assessment order. We have already observed that the order in re-assessment proceeding has been passed and there is provision for appeal under the Act. There is no allegation of violation of principle of natural justice which could have prompted us to invoke our constitutional writ jurisdiction straightaway dealing with an appealable order. But since there is an appellate provision where all the points which are being raised in this writ petition can be raised, we are of the opinion that the matter should be examined in appeal. the It was submission of Mr. Pasari that the recovery proceeding has already been initiated. We give liberty to the writ petitioner to institute an appeal and in the event it wants operation of the re-assessment order to be stayed it shall make payment of pre-deposit amount. We have already observed that the order in re-assessment proceeding has been passed and there is provision for appeal under the Act. There is no allegation of violation of principle of natural justice which could have prompted us to invoke our constitutional writ jurisdiction straightaway dealing with an appealable order. But since there is an appellate provision where all the points which are being raised in this writ petition can be raised, we are of the opinion that the matter should be examined in appeal. the It was submission of Mr. Pasari that the recovery proceeding has already been initiated. We give liberty to the writ petitioner to institute an appeal and in the event it wants operation of the re-assessment order to be stayed it shall make payment of pre-deposit amount. The present writ petition stands disposed of in the above terms. The connected application (I.A. No. 308 of 2019) shall also stand disposed of, as we have disposed of the main petition. (Aniruddha Bose, C.J.) AKT (Sanjay Kumar Dwivedi, J.)