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2019 (1) TMI 1787 - HC - Income TaxMaintainability of appeal - Mixed questions of fact and law - appellant challenged the order of assessment under Section 143(3) - HELD THAT - Admittedly, as against the order of assessment under Section 143(3) of the Act, an appeal lies to the Commissioner of Income Tax (Appeals) for brevity, the CIT (A) in terms of Section 246A of the Act. In our considered view, the appellant should not have by-passed the remedy, as the issues involved in the instant case are mixed questions of fact and law, which, obviously, a Writ Court cannot go into. Maintainability is an issue between the appellant/writ petitioner and the Court. Therefore, the Court will be well justified in refusing to entertain the matter, for which, the concession or consent of the respondent is unnecessary. We grant permission to the appellant to withdraw the said writ petition as well as this appeal. We also grant liberty to the appellant to file the appeal before the CIT(A) having jurisdiction over the matter. Accordingly, the writ petition as well as the writ appeal are dismissed as withdrawn. We grant 30 days' time from the date of receipt of a copy of this judgment to file the appeal before the CIT(A) after taking note of the fact that immediately after the assessment was over and the notice was received, the appellant moved the Writ Court.
Issues:
Challenge to order of assessment under Section 143(3) of the Income Tax Act, 1961 in a writ petition without availing appeal remedy before the Commissioner of Income Tax (Appeals) - Maintainability of the writ petition. Analysis: The appellant challenged the order of assessment under Section 143(3) of the Income Tax Act, 1961 in a writ petition. The Single Judge dismissed the writ petition on merits, highlighting that the issues involved were mixed questions of fact and law, which are within the jurisdiction of the Commissioner of Income Tax (Appeals). The Court emphasized that the appellant should have pursued the appeal remedy provided under the Act instead of approaching the Writ Court. The appellant's counsel referred to a Division Bench decision to support their argument, but the Court maintained that a writ petition was not maintainable, and the factual position should be considered before applying the law. The appellant's counsel sought permission to withdraw the writ petition and requested time to avail the appeal remedy before the Commissioner of Income Tax (Appeals). The Court, after hearing the Senior Standing Counsel for the Revenue, concluded that the question of maintainability was between the appellant and the Court. Consequently, the Court granted permission to withdraw the writ petition and the appeal, allowing the appellant to file an appeal before the Commissioner of Income Tax (Appeals) within 30 days from the date of receipt of the judgment. The Court clarified that the Appellate Authority should entertain the appeal without considering the question of limitation and decide it on merits, disregarding any observations made by the Single Judge in the writ petition. The judgment emphasized that the findings of the Single Judge would not impact the appellant's rights in pursuing the appeal before the Commissioner of Income Tax (Appeals) within the specified timeframe. No costs were awarded, and the connected Civil Miscellaneous Petition was dismissed. In conclusion, the High Court of Madras held that challenging an order of assessment under Section 143(3) of the Income Tax Act, 1961 through a writ petition without first availing the appeal remedy before the Commissioner of Income Tax (Appeals) was not maintainable. The Court granted permission to withdraw the writ petition and the appeal, allowing the appellant to file an appeal before the Commissioner of Income Tax (Appeals) within 30 days, emphasizing that the Appellate Authority should decide the appeal on merits without being influenced by the Single Judge's observations in the writ petition.
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