2014 (7) TMI 348 - HC - Income Tax

Notice for reopening of assessment u/s 148 of the Act Held that - The assessee has already filed an Appeal to the CIT(A) against the order and the remedy of appeal is an efficacious remedy - It would be open to the assessee to urge all points before the CIT(A) including the validity of the re-opening of the AY 2007-08 - the CIT(A) would take into account all the factors while deciding the Appeal filed by the Petitioner before him - there is no reason to believe that the CIT(A) would not consider and apply Relying upon Asian Paints Limited. Versus Deputy Commissioner of Income Tax and Another 2007 (1) TMI 159 - BOMBAY High Court - after rejection of the objections, no re-assessment proceedings would be commenced for a period of four weeks - The decisions of the Court are binding on all the authorities functioning in the State - The fact that the AO was passed in less than ten days of the rejection of objections and that also without indicating how and why the decision of the Court in Asian Paints is not applicable would lead one to conclude that the assessee has not been treated fairly appeal dismissed since alternate remedy is available - Decided against Assessee.

Summary

Issues:
Challenge to notice under Section 148 of the Income Tax Act, 1961; rejection of objections dated 31 October 2012; assessment Order dated 9th November 2012 under Section 143(2) read with Section 147 of the Act for Assessment Year 2007-08.

Analysis:

1. Challenge to Notice under Section 148:
The petitioner challenged the notice dated 27th March 2012 issued by the Assessing Officer under Section 148 of the Income Tax Act, 1961. The petitioner contended that the Assessment Order dated 9th November 2012 was passed without following due process, particularly without a notice under Section 143(2) of the Act and without affording any personal hearing. The petitioner argued that the Assessing Officer did not adhere to the directions of the court in a previous case, Asian Paints v/s. Deputy Commissioner of Income Tax. However, the Respondent-Revenue argued that the petitioner had the option to raise all contentions before the Commissioner of Income Tax (Appeals) (CIT(A)), and the failure to file a Writ Petition before the Assessment Order was passed should not invalidate the order.

2. Rejection of Objections and Assessment Order:
The petitioner also challenged the rejection of objections dated 31 October 2012 and the subsequent assessment Order dated 9th November 2012 under Section 143(2) read with Section 147 of the Act for Assessment Year 2007-08. The Respondent-Revenue contended that the petitioner had already filed an appeal before the CIT(A), and all issues, including the validity of the re-opening of the assessment year and compliance with court decisions, could be raised before the CIT(A). The court noted that the CIT(A) would consider all factors while deciding the appeal and that the petitioner had an efficacious remedy of appeal available.

3. Compliance with Court Decisions:
The court emphasized the importance of following court decisions, specifically referring to the case of Asian Paints Limited. It was noted that the Assessing Officer did not wait for the prescribed period of four weeks after rejecting the objections before passing the Assessment Order, as directed by the court in the Asian Paints case. The court highlighted that decisions of the court are binding on all authorities and that the Assessing Officer's actions did not appear to comply with the principles of natural justice, indicating that the petitioner may not have been treated fairly.

4. Decision and Disposition of the Petition:
Ultimately, the court declined to entertain the present petition, citing the petitioner's invocation of an alternative remedy of appeal before the CIT(A). The court disposed of the writ petition with no order as to costs, emphasizing the availability of the appeal process for the petitioner to address all issues raised in the petition.