2021 (7) TMI 921 - HC - Income Tax

Validity of Draft Assessment Order - to be treated as notice u/s 142(1) or not - impugned draft assessment order specifically states that certain losses and expenditures were either not admissible or not genuine or not verifiable - HELD THAT - Draft Assessment Order had put the petitioner to notice as to what will be the additions and deletions. Also the issue raised at the highest in the present writ petition is with regard to interpretation of draft Assessment Order which can certainly be urged and considered in Appeal. In fact, the jurisdiction to interpret the nature of draft Assessment order is vested with the Appellate Authority. This Court is further of the view that the argument that whether the petitioner s response was considered or not would have to be raised before the appellate authority while hearing the appeal and not in writ jurisdiction. The said argument in the present case requires minute examination of the Show Cause Notice as well as the response filed by the petitioner, which is not permissible in writ jurisdiction. Consequently, as the petitioner has alternative efficacious remedy, present matter need not be entertained in writ jurisdiction. Accordingly, the present writ petition and applications are dismissed.

Summary

Issues:
Challenging order for Assessment Year 2018-2019, demand notice, and penalty proceedings.

Analysis:
The petitioner challenged the order dated 23rd April 2021 for the Assessment Year 2018-2019, along with the demand notice and the penalty proceedings initiation. The petitioner argued that the show-cause notice issued by the respondent was more of a notice under Section 142(1) of the Act, as it raised further questions without indicating the proposed disallowed amount. The petitioner also contended that the assessment order was passed without considering their reply. Upon perusing the Draft Assessment Order, the court noted that certain losses and expenditures were deemed inadmissible or not genuine based on audit findings. The court highlighted specific expenditures not allowable under various IT sections, such as payments to specified persons under section 40A(2)(b) and gratuity payments not permitted under section 40A(7).

The Draft Assessment Order detailed discrepancies in the petitioner's claims, including negative stock values, uncapitalized foreign currency losses, lack of bills for purchased assets, and unverifiable expenses for repairs and sales promotions. The court observed inconsistencies in the petitioner's declared income compared to the turnover and expenditures, raising doubts about the reliability of the accounts and genuineness of claimed expenses. The court emphasized the need for verification of the petitioner's business activities in previous years, given the apparent discrepancies and lack of transparency in financial dealings.

The court opined that the Draft Assessment Order adequately notified the petitioner of potential additions and deletions, making it suitable for appeal consideration. It also noted that the interpretation of the order falls within the jurisdiction of the Appellate Authority, not the writ jurisdiction. The court advised that issues regarding the consideration of the petitioner's response should be raised during the appeal process, as minute examination of the show-cause notice and response is not permissible in writ jurisdiction. Consequently, the court dismissed the writ petition, stating that the petitioner has an alternative efficacious remedy through the appellate route. The court ordered the upload of the decision on the website and forwarded a copy to the respective counsels via email.