2018 (2) TMI 677 - HC - Income Tax

Reopening of assessment - aggregate fair market value of the said shares to the extent it exceeds the consideration requires to be taxed as deemed income of the assessee under the head income from other sources under Section 56(1) - Held that - The issue to be decided in the instant case are not pure questions of law, but requires in-depth consideration of the factual position and then apply the legal principles. The assessment having been completed in the names of the petitioner firm and protectively against the partners, they have to necessarily avail the appeal remedy available to them under the provisions of the Act. This is more so because the petitioners have not been able to establish that the appellate remedy is not efficacious, nor the petitioners were able to convince the Court that their cases fall within the well-defined exceptions which have been drawn as to when jurisdiction under Article 226 of the Constitution could be exercised. For the above reasons, Writ Petitions are dismissed as not maintainable, as the petitioners have an effective alternate remedy of appeal before the Appellate Authority, leaving it open to the petitioners to avail the appellate remedy

Summary

Issues:
Challenge to assessment orders under Section 143(3) and notices under Section 148 of the Income Tax Act, 1961 for the assessment year 2009-10. Maintainability of Writ Petitions due to the availability of an alternative remedy of appeal.

Analysis:
The petitioners challenged the assessment orders and notices issued under the Income Tax Act for the assessment year 2009-10. The lead case involved a firm and its partners as Writ Petitioners. The Revenue contended that the Writ Petitions were not maintainable due to the availability of an effective alternative remedy of appeal. The Senior Counsel for the petitioners argued that the assessment orders and notice under Section 148 were challenged, emphasizing no failure to disclose material facts and citing relevant legal precedents. The petitioners argued against the reopening of assessment based on the same material considered in the original assessment under Section 143(3), asserting it was impermissible under law. They also contested the application of Section 56(1) to their case, highlighting procedural errors by the Assessing Officer and valuation discrepancies.

The Revenue reiterated the preliminary objection, stating that the petitioners should pursue the appellate remedy available under the Act. The Court considered whether the Writ Petitions should be entertained, noting the petitioners' delay in approaching the Court after their objections to the reopening proceedings were rejected. During the assessment proceedings, it was argued that the shares were allotted at less than fair market value, leading to deemed income under Section 56(1). The partners contested that the taxation on the shares should be in the hands of the firm, not them. The Court observed that the issue required factual analysis and application of legal principles, directing the partners to avail the appeal remedy under the Act.

The Court sustained the Revenue's preliminary objections, holding that the Writ Petitions were not maintainable. The petitioners were directed to pursue the appellate remedy available to them. The judgment dismissed the Writ Petitions, leaving open the option for the petitioners to avail the appellate remedy without costs. The connected Miscellaneous Petitions were closed as a result of the judgment.