Sharayu Khot v. Income Tax Officer 23(1)-4 & Ors

Sharayu Khot. IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (L) NO. 239 OF 2018 Gopal Nihchaldas Pariani…Petitioner Versus Income Tax Officer 23(1)-4 & Ors. …Respondents ---------- Mr. Firoze Andhyarajina, Senior Counsel, a/w Mr. Merchant,Mr. M.F. Andhyarajina, Mr. Ishwar Ahiya, Mr. Bharat Merchant,i/b Thakordas & Madgavkar, for the Petitioner. Mr. Suresh Kumar, for the Respondents. ---------- CORAM :M.S. SANKLECHA &RIYAZ I. CHAGLA, JJ. DATE : 25 January 2018 ORDER : 1.This Petition under Article 226 of the Constitution ofIndia, challenges an order dated 29 December 2017 passed by 904-WPL-239-18.doc the Assessing Officer in regular assessment proceedings underSection 143(3) of Income Tax Act, 1961 (“The Act” for short).The impugned order dated 29 December 2017 disposes of thePetitioner's assessment for assessment year 2015-16. 2.A preliminary objection was raised by the Revenueto this Petition being entertained an account of an effectivealternative remedy of an Appeal under Section 143(3) of theAct. 3.On the other hand, the Petitioner submits that thisCourt should exercise its writ jurisdiction as the impugned orderdated 29 December 2017 under Section 143(3) of the Act waspassed without hearing the Petitioner. Further, parallelproceedings under Section 148 of the Act were commenced byissuing of notice dated 13 September 2016 seeking to reopenthe assessment year 2015-16. The withdrawal of the reopeningnotice dated 13 September 2016 was communicated to thePetitioner after passing of the impugned order dated 29 4.It is an undisputed position before us that for thesubject assessment year 2015-16, an intimation under Section143(1) of the Act had been issued. However, the time tocomplete regular assessment under Section 143(3) of the Acthad not expired till passing of the impugned order dated 29December 2017. The time was to expire on 31 December 2017.It is also not disputed before us that prior to passing of theimpugned order dated 29 December 2017, a notice underSection 143(2) of the Act had been issued. 5.The primary grievance of the Petitioner to theimpugned order dated 29 December 2017 is the same has beenpassed without granting an opportunity of personal hearing tothe Petitioner. We note that in the assessment order, theAssessing Officer has made an observation that certain detailswere furnished by the Petitioner during the assessment year.This by itself would give rise to disputed questions on fact which 904-WPL-239-18.doc can be appropriately dealt with by the Appellate Authorityunder the Act. 6.So far as the Petitioner's grievance of two parallelproceedings being initiated by the Petitioner is concerned, wenote that the proceedings under Section 148 of the Act have notculminated in any order being passed. Admittedly, the Revenuehas withdrawn the reopening notice. Prima facie we see noconfusion on the part of the Petitioner, as prior to passing of theimpugned order, a Show Cause Notice was issued to thePetitioner and it was responded to. In any case the Petitioner'scase that the reopening notice resulted in somemisunderstanding is also an issue which could be agitatedbefore Appellate Authority under the Act. 7.Therefore, in view of efficacious alternative remedybeing available under the Act, we see no reason to exercise ourextra ordinary jurisdiction under Article 226 of the Constitutionof India to entertain this Petition. 904-WPL-239-18.doc 8.All contentions left open to be urged before theauthorities under the Act. 9.Accordingly, the Writ Petition is dismissed. No orderas to costs. [RIYAZ I. CHAGLA J.] [M.S. SANKLECHA, J.]