Wp/177/2022 Of Selva Stone Exports Private Limited v. Assistant Commissioner Of Income Tax

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 11.01.2022 CORAM THE HON'BLE MR.JUSTICE C.SARAVANAN W.P.NO.177 OF 2022ANDW.M.P.NOS.210 & 211 OF 2022 (THROUGH VIDEO CONFERENCING) Selva Stone Export Private Limited,Represented by its Managing Director,Thiru.G.Selvaraj,S/o.Thiru.Govinda Chetty,No.27-A, Jagadevi Road,Chennai Bye Pass, Krishnagiri - 635 104. ... Petitioner The Assistant Commissioner of Income Tax,Central Circle,Income Tax Office,No.3, Gandhi Road,Salem - 636 007. ... Respondent Prayer: Writ Petition filed under Article 226 of Constitution ofIndia, for issuance of a Writ of Certiorarified Mandamus callingfor the records in DIN: ITBA/AST/S/143(3)/2021-2022/1036092691(1) dated 30.09.2021 on the file of the respondent relating tothe Assessment Year 2019-2020 and quash the same. For Petitioner : Mr.M.P.Senthil KumarFor Respondent : Mr.A.P.Srinivas Senior Standing CounselORDER Mr.A.P.Srinivas, learned Senior Standing Counsel takesnotice on behalf of the respondent. https://hcservices.ecourts.gov.in/hcservices/ 2. The petitioner has challenged the Impugned AssessmentOrder dated 30.09.2021 for the Assessment Year 2019-2020. It isthe specific case of the petitioner that the petitioner hasearlier issued with a notice under Section 143(2) of the IncomeTax Act, 1961 on 29.09.2020. However, the notice did notcontain any details and therefore the petitioner responded on16.10.2020 and informed the respondent that the petitioner iswilling to co-operate if information called for is specified. 3. The learned counsel for the petitioner submits thatthereafter the petitioner was issued with a notice under Section142(1) of the Income Tax Act, 1961 on 19.02.2021 to which, thepetitioner replied on 05.04.2021 and on 09.04.2021. 4. It is submitted that thereafter there was no responseand on 06.09.2021 a notice under Section 129 of the Income TaxAct was issued regarding change of incumbent and thereafter theimpugned order has been passed. 5. It is submitted that the impugned order has been passedwithout considering the details furnished by the petitioner intheir response dated 05.04.2021 and 09.04.2021. It is submittedthat the impugned Assessment Order has been passed only with aview to complete the assessment to avoid lapsing of theassessment. He therefore submitted that the impugned order wasliable to be interfered by quashing the same and remitting thecase back to the respondent to pass appropriate orders onmerits. 6. Opposing the prayer, the learned Senior Standing Counselfor the respondent submits that the assessments were completedin terms of Section 282 read with Section 127 of the Income TaxAct, 1961 and the assessments were completed electronically asis mandated under the aforesaid provisions. It is submittedthat the petitioner has not filed documents called for andtherefore there is no merits in this writ petition. 7. The learned Senior Standing Counsel for the respondentfurther submits that the petitioner has an alternate efficaciousremedy inasmuch as the impugned order has discussed the factsthat the petitioner has not filed the required documents whichhas led to be passing of the impugned order. He thereforesubmits that the writ petition is liable to be dismissed. 8. The learned Senior Standing Counsel for the respondentsubmits that the information furnished by the petitioner inresponse to notice issued under Section 142(1) of the Income TaxAct, 1961 was incomplete and therefore the impugned order hasbeen passed. It is further submitted that the impugned order 7. The learned Senior Standing Counsel for the respondentfurther submits that the petitioner has an alternate efficaciousremedy inasmuch as the impugned order has discussed the factsthat the petitioner has not filed the required documents whichhas led to be passing of the impugned order. He thereforesubmits that the writ petition is liable to be dismissed. 8. The learned Senior Standing Counsel for the respondentsubmits that the information furnished by the petitioner inresponse to notice issued under Section 142(1) of the Income TaxAct, 1961 was incomplete and therefore the impugned order hasbeen passed. It is further submitted that the impugned order has been passed in accordance with Note on e-proceedings whichwas appended to a notice issued under Section 143(2) of theIncome Tax Act, 1961 dated 29.09.2020. It is thereforesubmitted that the petitioner has an alternate remedy andtherefore the petitioner has to work out the remedy before theAppellate Commissioner in accordance with law under Section 246Aof the Income Tax Act, 1961. The learned Senior StandingCounsel for the respondent further submits that the order isdated 30.09.2021 and therefore the writ petition is liable to bedismissed on account of latches. 9. By way of rejoinder, the learned counsel for thepetitioner submits that the petitioner was unaware of theimpugned order dated 30.09.2021 until the receipt of e-maildated 16.12.2021 enclosing copies of recovery notice. 10. The learned Senior Standing Counsel for the respondentfurther submitted that Section 282 of the Income Tax Act, 1961read with Rule 127 of the Income Tax Rules mandates service ofnotice and a specific method has been prescribed and thereforeit is not open for the petitioner to say that the petitioner wasunaware for passing of the impugned order on 30.09.2021. 11. As far as the merits is concerned, the learned SeniorStanding Counsel for the respondent submits that the AssessingOfficer has come to a conclusion on facts based on the availablerecords that were furnished by the petitioner in response tonotices vide e-mail dated 05.04.2021 and on 09.04.2021 andtherefore the petitioner has to work out the remedy only beforethe Appellate Commissioner. 12. I have considered the arguments advanced by the learnedcounsel for the petitioner and the learned Senior StandingCounsel for the respondent. I have also perused the impugnedorder and the communications which preceded the notices issuedto the petitioner under Section 282 of the Income Tax Act, 1961has been amended and substituted with effect from 01.10.2009 forgiving effect to the aforesaid provision. Rule 127 of theIncome Tax Rules reads as under:- "127.Service of notice, summon, requisition, order andother communication: 127(1). For the purpose of sub-section (1) ofSection 282, the address (including the address forelectronic mail or electronic mail message) to which anotice or summons or requisition or order or any othercommunication under the Act (hereafter) in this rulereferred to as "communication") may be delivered ortransmitted shall be as per sub-rule (2)." 13. Therefore, it is not open for the petitioner to say thatthe petitioner was unaware of the passing of the impugned orderdated 30.09.2021. Whether the information furnished by thepetitioner has been correctly interpreted by the respondentwhile passing the impugned order is on the merits, correctnessof which will have to be tested only by the AppellateCommissioner. Further, the impugned order is dated 30.09.2021.However, this writ petition has been filed only on 04.01.2022after the limitation for filing statutory appeal would haveexpired. 13. Therefore, it is not open for the petitioner to say thatthe petitioner was unaware of the passing of the impugned orderdated 30.09.2021. Whether the information furnished by thepetitioner has been correctly interpreted by the respondentwhile passing the impugned order is on the merits, correctnessof which will have to be tested only by the AppellateCommissioner. Further, the impugned order is dated 30.09.2021.However, this writ petition has been filed only on 04.01.2022after the limitation for filing statutory appeal would haveexpired. 14. Considering the fact that the limitation prescribedwould have already expired for filing the appeal before theAppellate Commissioner, I am inclined to dispose this writpetition by directing the petitioner to file a statutory appealbefore the Appellate Commissioner under Section 246A of theIncome Tax Act, 1961 within a period of thirty days from thedate of receipt of a copy of this order. 15. In case the appeal has to be filed through online, therespondent is directed to facilitate the same by issuingsuitable instructions to allow the petitioner to file suchappeal through online. Otherwise, the petitioner is directed tofile statutory appeal within the aforesaid period. 16. If such appeal is filed before the AppellateCommissioner, the Appellate Commissioner shall consider theappeal of the petitioner on merits and dispose the same inaccordance with law within a period of thirty days from the dateof receipt of such appeal. 17. This Writ Petition stands disposed of with the aboveobservations. No costs. Consequently, connected WritMiscellaneous Petitions are closed. Sd/- Assistant Registrar(CS VIII) //True Copy// Sub Assistant Registrar arb To The Assistant Commissioner of Income Tax,Central Circle,Income Tax Office,No.3, Gandhi Road,Salem - 636 007. +1cc to Mr.G.Baskar, Advocate, S.R.No.2425+1cc to Mr.A.P.Srinivas, Advocate, S.R.No.2684 W.P.No.177 of 2022andW.M.P.Nos.210 & 211 of 2022 PCH(CO)PM/07/02/2022