2020 (2) TMI 658 - HC - Income Tax

Recovery proceedings - assessment finalised against the deceased 1st writ petitioner - as contented no notice of demand as contemplated under Section 156 - HELD THAT - Once appeared before the Assessing Officer, on 19.12.2006. But the assessee has not adduced any fresh evidence nor made any request for cross examination of the loan creditors. In addition, he only sought time. Since there existed a direction for time bound disposal of the matter, the Assessing Officer finalized the assessment under Ext.P5(a). Ext.R1(a) produced by the department would reveal that Ext.P5(a) order of assessment was served upon the assessee along with a demand notice, in January, 2007. Thereafter, the matter was kept ignored by the 1st petitioner/assessee till 2011. Even though a fresh copy of Ext.P5(a) was served at the request of the assessee in the year 2011 itself, the above writ petition was filed only in the year 2013, when the sale proclamation notice was received pursuant to the recovery steps initiated. Therefore the learned Singe Judge was perfectly justified in declining interference. Neither the assessee(deceased 1st writ petitioner) nor the appellants herein, who were the legal heirs impleaded in the writ petition, had taken any attempt to challenge the consequential assessment by availing the statutory remedy of appeal. Therefore there is every justification on the part of this court in refusing interference with the recovery proceedings initiated. This is more so, because the petitioners have failed in their contention that there was lack of service of proper demand notice. Hence we are of the opinion that the Writ Appeal deserves no merit and the same is liable to be dismissed. Appellants had pointed out that, the observations contained in the impugned judgment may stand in their way in availing the statutory remedy of appeal, even by seeking condonation of delay, before the appellate authority. We are of the opinion that, dismissal of the writ petition could not be in a manner foreclosing the remedy if any available to the appellants in challenging the revised assessment by availing statutory remedy. While dismissing the above writ appeal, we make it clear that none of the observations contained in the impugned judgment shall not stand in the way of the appellants seeking remedy of appeal before the appellate authority by seeking condonation of delay occurred in filing such appeal. If any such appeal is admitted, the appellate authority shall deal with the matter independently, to the extent it is admitted under law.

Summary

Issues:
Challenge to assessment order, Failure to cooperate with proceedings, Lack of challenge to assessment order, Delay in filing writ petition, Lack of service of demand notice, Refusal to interfere with recovery proceedings, Observations in judgment affecting statutory remedy of appeal.

Analysis:
The judgment involves a challenge to an assessment order finalized against the deceased 1st writ petitioner for the assessment year 1999-2000. The deceased petitioner filed a revision petition under Section 264 of the Income Tax Act, which led to the assessment being set aside and remitted back to the assessing authority for a fresh assessment order. The deceased petitioner failed to cooperate with the proceedings due to illness, leading to the finalization of the assessment order under Ext.P5(a). The main contention raised was the lack of a notice of demand along with the assessment order, which was refuted by the Department with evidence of the demand notice being served in 2006. The Single Judge refused to interfere with the assessment order due to the belated challenge and lack of cooperation by the assessee.

The High Court noted that the original assessment was completed in 2004, with the revision petition leading to the remand order in 2006. Despite multiple opportunities, the assessee did not provide fresh evidence or request cross-examination of loan creditors. The assessment order was served to the assessee in 2007, but no action was taken until 2011. The writ petition challenging the assessment was filed in 2013 after recovery steps were initiated. The Court found that neither the assessee nor the legal heirs attempted to challenge the assessment through the statutory remedy of appeal, justifying the refusal to interfere with the recovery proceedings.

The Court emphasized that the observations in the judgment should not prevent the appellants from seeking the statutory remedy of appeal by seeking condonation of delay. The dismissal of the writ appeal does not foreclose the appellants from challenging the revised assessment through the proper appellate process. If an appeal is admitted, the appellate authority is directed to independently deal with the matter to the extent it is admitted under the law.