Wp/328/2023 Of Aldrin Alberto Araujo Soares v. Deputy Commissioner Of Income Tax, Assessment Circle -2(1) And 2 Ors

Meena IN THE HIGH COURT OF BOMBAY AT GOAWRIT PETITION NO.328 OF 2023 …ALDRIN ALBERTO ARAUJO SOARESPetitioner V/S. DEPUTY COMMISSIONER OF INCOME TAX...RespondentsASSESSMENT CIRCLE -2(1) AND 2 ORS. Mr H.D. Naik with Mr Aditya Naik, Advocates for the Petitioner. Ms S. Linhares, Standing Counsel for the Respondent No.1. Mr Raviraj Chodankar, Central Government Standing Counsel forthe Respondent Nos.2 and 3. CORAM:M.S. SONAK &BHARAT P. DESHPANDE,JJ. DATE:3[rd] JULY,2023 P.C.: 1.Heard Mr H.D.Naik, learned Counsel for the petitioner, Ms Linhares,learned Standing Counsel for Income Tax Department - Respondent Nos.1 and2 and Mr Raviraj Chodankar learned Central Government Standing Counsel. 2.Ms Linhares, at the outset, raised a preliminary objection to theentertainment of this petition. She pointed out that the order dated 26.12.2022impugned in this petition was only a draft order under Section 144C(1) of theIncome Tax Act, 1961 (said Act). She pointed out that as against this order, the petitioner has already filed detailed objections before Respondent No.2, pendingconsideration. She submits that this petition may not be entertained on thisground and also on the ground that this court would have no territorialjurisdiction. 3.Mr H.D. Naik, learned Counsel for the petitioner submits that thepetitioner is an assessee in Goa. He points out that the petitioner has beenassessed in Goa in the past. He, therefore, submits that cause of action hasaccrued in Goa and this Court would have territorial jurisdiction to entertainthe present petition. 4.On the objection as regards alternate remedy, Mr H.D. Naik points outthat all facts were duly pleaded in the petition. He submits that this Courtshould entertain the petition because findings on the residential status of thepetitioner in the draft impugned order are contradictory. He submits that theOfficer who made the impugned order had no jurisdiction to make the same.On this ground, he submits that the petition may be entertained. 5.Although we are not prima facie inclined to uphold the objections basedupon the alleged want of territorial jurisdiction, Ms Linhares's second objectionmust prevail in the peculiar facts and circumstances of the present case. 6.Admittedly, concerning the draft order dated 26.12.2022, the petitionerhas filed objections before the Dispute Resolution Panel–2 (Respondent No. 2).Consideration of such objection is pending. Terefore, it would not be appropriate for us to entertain this petition bypassing an alternate remedy, notonly available but already availed by the petitioner. 7.Mr H.D. Naik further expressed apprehension that pending RespondentNo.2's decision, Respondent No.1 may finalise the impugned draft order dated26.12.2022. Accordingly, we direct Respondent No 2 to dispose of thepetitioner's objection after complying with the principles of natural justice andfair play as expeditiously as possible and in any case within three months fromtoday. Pending the disposal of these objections, Respondent No. 1 should notfinalise the impugned draft order dated 26.12.2022. According to us, thisdirection will considerably address the apprehension expressed by Mr H.D.Naik. 8.Accordingly, we dispose of this petition by directing Respondent No. 2 toconsider and dispose of the petitioner's objections to the impugned draft orderdated 26.12.2022 within three months from today after due compliance withprinciples of natural justice and fair play. Until the disposal by RespondentNo.2, Respondent No 1 must not finalise the draft order. Te finalisation issuewill accordingly abide by the orders that Respondent No. 2 makes on thepetitioner's objections pending before him. 9.Further, we clarify that we have not examined the merits of the matterand, therefore, all contentions of all the parties are expressly left open for thedecision of Respondent No. 2 in the first instance. 8.Accordingly, we dispose of this petition by directing Respondent No. 2 toconsider and dispose of the petitioner's objections to the impugned draft orderdated 26.12.2022 within three months from today after due compliance withprinciples of natural justice and fair play. Until the disposal by RespondentNo.2, Respondent No 1 must not finalise the draft order. Te finalisation issuewill accordingly abide by the orders that Respondent No. 2 makes on thepetitioner's objections pending before him. 9.Further, we clarify that we have not examined the merits of the matterand, therefore, all contentions of all the parties are expressly left open for thedecision of Respondent No. 2 in the first instance. 10.Te petition is disposed of in the above terms. Tere shall be no order asto costs. All concerned are to act on the authenticated copy of this order. BHARAT P. DESHPANDE,J. M. S. SONAK, J. MEENA Digitally signed by MEENA VISHAL VISHAL BHOIR BHOIRDate: 2023.07.04 18:40:41 +05'30'