9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2013 (6) TMI 11 - HC - Income TaxMaintainability of appeal - assessment order has been revised by the CIT/(A) in exercise of power conferred u/s 263 - present writ petition filed claiming a writ of certiorari quashing the order of CIT(A) - Held that - There is no justifiable reason for the petitioner not to approach the Income Tax Appellate Tribunal by way of statutory remedy of appeal or to invoke the extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India. At the present moment, there is no tax liability for the Assessment Year in question. According to the petitioner, it has already submitted the reply to the queries raised by the AO which are sufficient. Only, an assessment order has to be framed after giving an opportunity of hearing. Still there is ample time provided the petitioner cooperates with the Assessing Authority and if need be, the proceedings may take place out of turn, on day to day basis. It is for the Assessing Authority to respect the time limit for completing the assessment proceedings. The case on hand does not fall in either of exceptions as provided for in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others, (1998 (10) TMI 510 - SUPREME COURT) for exercise of writ jurisdiction. The explanation given to the queries is sufficient or not lies in the realm of the Assessing Authority or the Appellate Authority but certainly it does not lie within the realm of the writ jurisdiction. The Income Tax Authorities are well trained to appreciate the intricacies of accounting and no reason not to relegate the petitioner to statutory forum. Thus availability of the alternative remedy by way of appeal before the Tribunal, the present writ petition declined.
Issues Involved:
1. Validity of the order passed under section 263 of the Income Tax Act. 2. Adequacy of inquiry conducted by the Assessing Officer. 3. Availability and adequacy of alternative remedies. Issue-wise Detailed Analysis: 1. Validity of the order passed under section 263 of the Income Tax Act: The petitioner challenged the order dated 22.3.2013 passed by the Commissioner of Income Tax under section 263 of the Income Tax Act, which revised the assessment order for the Assessment Year 2008-2009. The petitioner argued that the order was incorrect on merits, asserting that the Assessing Officer had conducted a proper inquiry before finalizing the assessment. However, the court observed that the assessment order was passed without proper enquiry on several crucial points, including the grounds for scrutiny, negligible profit returned, acceptance of trade and loan creditors without verification, and allowance of certain expenses without findings. The court upheld the Commissioner's view that the assessment order was erroneous and prejudicial to the interest of the revenue, citing precedents where the failure to make necessary inquiries rendered the order erroneous under section 263. 2. Adequacy of inquiry conducted by the Assessing Officer: The petitioner contended that the Assessing Officer had raised numerous queries, which were duly replied to, indicating that a detailed inquiry was conducted. However, the court found that the assessment order was brief and lacked discussion on material points, particularly regarding the creditors and trade creditors. The court emphasized that mere filing of replies by the assessee is insufficient without the Assessing Officer's application of mind and discussion in the assessment order. The court distinguished between cases of no inquiry and inadequate inquiry, referencing the Delhi High Court's decisions in Commissioner of Income Tax Vs. Sunbean Auto Limited and Income Tax Officer Vs. D.G. Housing Project Ltd. The court concluded that the assessment order was erroneous due to the failure to conduct a thorough inquiry, justifying the Commissioner's exercise of jurisdiction under section 263. 3. Availability and adequacy of alternative remedies: The petitioner argued that the alternative remedy of appeal before the Income Tax Appellate Tribunal was inadequate and inefficacious, as the Tribunal could not stay proceedings consequent to a remand order. The court, however, rejected this argument, emphasizing that the statutory remedy must be availed of unless extraordinary situations warrant bypassing it. The court cited the Supreme Court's decisions in Titaghur Paper Mills Co. Ltd. v. State of Orissa and United Bank of India Vs. Satyawati Tandon, which reiterated that statutory remedies should not be circumvented by invoking writ jurisdiction, especially in fiscal matters. The court found no justifiable reason for the petitioner not to approach the Tribunal and dismissed the writ petition on the ground of availability of an alternative remedy. Conclusion: The court concluded that the assessment order was erroneous and prejudicial to the revenue due to the lack of proper inquiry by the Assessing Officer. The petitioner's arguments regarding the adequacy of inquiry and inadequacy of alternative remedies were rejected. The court upheld the Commissioner's order under section 263 and dismissed the writ petition, directing the petitioner to seek remedy through the statutory appeal process.
|
