2018 (3) TMI 527 - HC - Income Tax

Reopening of assessment - grievance of the petitioner that order is been passed in breach of principles of natural justice as no hearing was given to him - Held that - We are of the view that the CIT(A), the authority to whom the appeal would lie from the impugned order dated 29th December, 2017, would be able to provide the relief to the petitioners which they seek before us if they are right in their contention. Issue gives rise to factual investigation. We have not examined the merits of the respective contentions. It would be open to the parties to urge their contentions before the CIT(A) who would decide the same in accordance with law. We are not entertaining this petition. However, bearing in mind the fact that the petition is pending before the impugned order dated 29th December, 2017 was passed, the time to file an appeal from the impugned order dated 29th December, 2017 is extended upto 12th March, 2018. In case, the petitioners file an appeal on or before 12th March, 2018 the same would be considered on its own merits by the CIT(A) without taking any objection on account of limitation

Summary

Issues involved:
Challenge to Notice under Section 148 of the Income Tax Act, 1961 for Assessment Year 2010-11; Challenge to Assessment Order dated 29th December, 2017 under Section 143(3) r/w Section 147 of the Act; Breach of principles of natural justice; Jurisdiction of the High Court to entertain the writ petition; Availability of alternative remedy under the Act; Extension of time to file an appeal; Stay of recovery proceedings.

Analysis:

1. Challenge to Notice under Section 148:
The petition was initially filed to challenge the Notice dated 29th March, 2017, issued by the Assessing Officer under Section 148 of the Income Tax Act, seeking to reopen assessment for Assessment Year 2010-11. However, during the pendency of the petition, an Assessment Order dated 29th December, 2017, was passed under Section 143(3) r/w Section 147 of the Act, amending the petition to include a challenge to this order as well.

2. Breach of Principles of Natural Justice:
The petitioner contended that the Assessment Order dated 29th December, 2017, was passed in breach of principles of natural justice as no hearing was provided by the authorities before passing the said order. The petitioner relied on the decision in Whirlpool Corporation Vs. Registrar of Trade Marks & Ors., (1998) 8 SCC 01, to support the argument for the High Court to exercise its extraordinary writ jurisdiction.

3. Jurisdiction of the High Court:
The learned Counsel for the respondents contested the issue of breach of natural justice, indicating that factual determination is required, best done by the Authorities under the Act. The High Court acknowledged its jurisdiction to entertain a writ petition against orders passed in breach of natural justice or without jurisdiction. However, it noted that the Commissioner of Income Tax (Appeals) could provide the relief sought by the petitioners if they are correct in their contentions.

4. Availability of Alternative Remedy:
While the High Court acknowledged its jurisdiction, it also considered whether the petitioners had an efficacious alternative remedy to challenge the impugned orders under the Act. The Court opined that the Commissioner of Income Tax (Appeals) would be able to address the petitioners' concerns, emphasizing that the issue required factual investigation, which the CIT(A) could undertake in accordance with the law.

5. Extension of Time and Stay of Recovery Proceedings:
The High Court decided not to entertain the petition but extended the time for filing an appeal from the impugned order dated 29th December, 2017, up to 12th March, 2018. It directed that the respondents should not initiate any recovery proceedings until the petitioners file an appeal by the specified date and for a subsequent two-week period to allow the petitioners to apply for a stay of the order or demand before the authorities under the Act.

6. Conclusion:
The petition was disposed of in accordance with the directions provided by the High Court, emphasizing the extension of time for filing an appeal and the stay of recovery proceedings to facilitate the petitioners in seeking appropriate relief through the appeal process.