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2021 (10) TMI 1060 - HC - Income TaxFiling of two proceedings challenging one order or proceeding - HELD THAT - It is not in dispute that petitioner after passing of assessment order 16.06.21 (Annexure P-1) and issuance of demand notice dated 16.06.21 (Annexure P-2), petitioner has approached the Appellate Authority by way of filing an appeal under Section 246(A) of the Act. It is also not in dispute that the Appellate Authority has powers to set aside the assessment order if found to be contrary to mandatory provisions under the Act. Under Section 251 of the Act of 1961, the Appellate Authority is having all the powers to consider the grounds raised by the petitioner in appeal. See SATYA PAL ANAND VERSUS STATE OF M.P. AND ORS. 2016 (10) TMI 1142 - SUPREME COURT Provisions under Section 251 of the Act of 1961, grounds raised by petitioner and also considering aforementioned ruling of Hon'ble Supreme Court, the writ petition challenging the same order which is pending consideration before the Appellate Authority is not maintainable ad is liable to be dismissed, as such.Consequently, writ petition is dismissed as not maintainable.
Issues:
Challenge to assessment order under Income Tax Act, 1961; Request for personal hearing under Section 144(B)(7)(Vii); Filing of writ petition during pendency of statutory appeal under Section 246(A); Jurisdiction of Appellate Authority under Section 251; Maintainability of writ petition; Directive for expeditious consideration of appeal. Analysis: The petitioner challenged the assessment order dated 16.06.21 and demand notice issued under Section 156 of the Income Tax Act, 1961, via a writ petition under Article 226 of the Constitution of India. The petitioner requested a personal hearing as per Clause 3(c) of the Draft Assessment Order, citing provisions of Section 144(B)(7)(Vii). However, the assessment order was passed without providing the requested personal hearing, leading to the argument that non-compliance with Section 144(B) renders the assessment order invalid. The petitioner highlighted a Delhi High Court decision where an assessment order was quashed due to the lack of a personal hearing. Despite filing a statutory appeal under Section 246(A) after the demand notice, the petitioner pursued the writ petition. The respondents contended that filing a writ petition during the pendency of a statutory appeal is impermissible, as both challenge the same order concurrently. They argued that the grounds raised in the writ petition could be addressed by the Appellate Authority under Section 246(A), making the writ petition unnecessary. The High Court noted that the Appellate Authority has the power to set aside an assessment order if it violates statutory provisions, as provided in Section 251 of the Act. Referring to a Supreme Court decision, the High Court emphasized that pursuing multiple proceedings for the same relief is discouraged, and parties must elect their remedy wisely. Considering the facts, the grounds raised by the petitioner, and the legal precedent, the High Court found the writ petition challenging the same order pending before the Appellate Authority as not maintainable and dismissed it accordingly. The Court directed the Appellate Authority to expedite the consideration and decision of the appeal filed by the petitioner, acknowledging the delay in progress despite the appeal being filed on 13.08.21. This directive aimed to ensure a prompt resolution of the petitioner's appeal before the Appellate Authority.
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