Pvt.ltd v. Deputy Commissioner Of Income Tax

C/SCA/4966/2019 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 4966 of 2019 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE J.B.PARDIWALA andHONOURABLE MR.JUSTICE A.C. RAO ========================================================== 1 Whether Reporters of Local Papers may be allowed to NOsee the judgment ?2 To be referred to the Reporter or not ?NO3 Whether their Lordships wish to see the fair copy of the NOjudgment ?4 Whether this case involves a substantial question of law NOas to the interpretation of the Constitution of India or any order made thereunder ? ========================================================== M/S BUCHI OPERATIONS INDIA PVT.LTD.M/S BUCHI OPERATIONS INDIA PVT.LTD. Versus DEPUTY COMMISSIONER OF INCOME TAX ========================================================== Appearance: MR KAMALDEEP DEAYAL, ADVOCATE WITH MR ROHAN LAVKUMAR(9248) for the Petitioner(s) No. 1MRS KALPANAK RAVAL(1046) for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA and HONOURABLE MR.JUSTICE A.C. RAO Date : 23/07/2019 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) 1.By this writ-application under Article-226 of the Constitution of India, the writ-applicant has prayed for the following reliefs:- 77(a) issue a writ of certiorari quashing and setting aside order dated 20.12.2018 passed by the Respondent in assessment proceedings under S.143(3) for AY 2015-2016; (b)Consequent on the grant of relief (a) quash and set aside the illegal Demand Notice dated 20[th] December, 2018 issued under S.156 of the Income Tax Act, 1961; (c)Consequent on the grant of relief (a) quash and set aside Show Cause Notice dated 20[th] December, 2018 issued under S.274 r/w. S.271(1)(c) of the Income Tax Act, 1961; (d)Consequent on the grant of relief (a) quash and set aside Notices dated 17[th] February 2019 and 20[th] February, 2019 issued under S.220(2) of the Income Tax Act, 1961; (e)Consequent on the grant of relief (a), issue a mandamus directing the Respondent to forthwith immediately refund the amount of Rs.55,57,061/- (Rupees Fifty Five Lakhs Fifty Seven Thousand and Sixty one only) collected illegally from the petitioner. (f)Ex-parte ad-interim relief in terms of prayer (c and d) above may kindly be granted. (g)Pass such other and further reliefs as may be deemed just and proper in the interest of justice. 2.In Paragrahs-63, 64 and 65 respectively of the memo of the writ-application, the following has been stated:- “63.On 30[th] January 2019 the petitioner filed its online appeal before the CIT (Appeals) with relevant documents attached. A copy of the appeal filed by the petitioner against the impugned order is annexed hereto and marked as Annexure P-16. 64.On 30[th] January 2019, the petitioner filed an application for condoning the delay in filing the aforesaid appeal. The delay was of 5 days. It is pertinent to mention that the petitioner was constrained to file the appeal in order to arrest limitation in the eventuality this Hon'ble Court was not inclined to interfere. A copy of the application for condonation of delay filed by the petitioner is annexed hereto and marked as Annexure P-27. 65.On 30[th] January, 2019, the petitioner informed the respondent that since it had filed its appeal against the impugned order, the Respondent may keep the penalty proceedings under S.274 read with S.271(1)(c) in abeyance. A copy of the intimation dated 30[th] January 2019 sent by the petitioner to the Respondent is annexed hereto and marked as Annexure-P-28.” 3.In Paragraph-75 of the memo of the writ-application, the following averments have been made. Hon'ble Court was not inclined to interfere. A copy of the application for condonation of delay filed by the petitioner is annexed hereto and marked as Annexure P-27. 65.On 30[th] January, 2019, the petitioner informed the respondent that since it had filed its appeal against the impugned order, the Respondent may keep the penalty proceedings under S.274 read with S.271(1)(c) in abeyance. A copy of the intimation dated 30[th] January 2019 sent by the petitioner to the Respondent is annexed hereto and marked as Annexure-P-28.” 3.In Paragraph-75 of the memo of the writ-application, the following averments have been made. “75.The petitioner has filed a statutory appeal before the CIT (Appeals) under S.246A of the Act in order to arrest limitation in the event this Hon'ble Court is not inclined to interfere, that being so the aforesaid remedy is not efficacious for the grounds elaborately dealt with above.” 4.Thus, it is clear that against the impugned order passed by the respondent under Section-143(3) of the Income Tax Act, 1961 [for short 'The Act, 1961'] for the A.Y.2015-2016, an appeal under Section-246A of the Act has already been preferred before the Commissioner [Appeals]. 5.The learned senior counsel appearing for the writ-applicant vehemently submitted that this writ-application may be entertained despite the fact that the assessee has preferred an appeal under Section-246A of the Act before the Commissioner [Appeals] as the impugned order is ex-facie, without jurisdiction, the same has been passed violative of the principles of natural justice and is also ultra vires Section-10AA of the Act. Manifolds contentions have been raised while questioning the legality and validity of the impugned order. 6.Having heard the learned counsel appearing for the parties and having gone through the materials on record, we are convinced that the present one is not a case where this Court may feel persuaded to exercise its own extraordinary writ-jurisdiction by-passing the statutory remedy of appeal available to the writ-applicant. All the contentions raised before this Court can very well be examined by the Commissioner [Appeals] exercising its appellate jurisdiction. We are not satisfied that the facts and circumstances of the case did not warrant exercise of writ-jurisdiction of this Court allowing the writ-applicant liberty of by-passing the statutory remedy of appeal. 7.The writ-petition is rejected on the ground of availability of an alternative efficacious remedy of appeal before the Commissioner [Appeals]. The appeal has already been preferred and the same is pending. In such circumstances, the writ-applicant should pursue further with the appeal, which has been preferred before the Commissioner [Appeals] under Section 246A of the Act. It is clarified that we have otherwise not expressed any opinion on the merits of the case. The Commissioner [Appeals] shall look into all the relevant aspects of the matter and decide the appeal in accordance with law on its own merit. 8.In the result, this writ-application fails and is hereby rejected. The ad-interim relief earlier granted stands vacated forthwith. Notice discharged. (J. B. PARDIWALA, J) aruna (A. C. RAO, J)