2022 (7) TMI 284 - HC - Income Tax

Reopening of assessment u/s 147 - Whether Respondent No.1 has not obtained the requisite approval of the specified authority u/s. 151 of the Income Tax Act before the issuing the impugned notice? - HELD THAT - Initially, the petitioner has filed the present petitions challenging the show-cause notice and during pendency of the petitions, the assessment proceedings have been completed and final order has been passed. The petitioner has not amended the writ petition challenging the validity of the assessment order, hence the same cannot be examined in this petition. Admittedly, the assessment order is appellable and there is a pre-deposit condition which cannot be relaxed or waived. The petitioner is challenging the jurisdiction of the authority mainly on the ground that there was no material before the Assessing Officer to initiate the proceedings u/s. 148 of the Income Tax Act. In order to decide this issue, this Court is required to examine the merits of the case which is not permissible under Article 226 of the Constitution of India. The appellate authority is competent to decide as to whether there was any material before issuing the show-cause notice or not? Even otherwise, the impugned show-cause notice does not survive now as the final assessment order has been passed. Hence, these petitions are liable to be dismissed. Accordingly, all these petitions are dismissed. However, it is made clear that dismissal of these petitions shall not come in the way of appellate authority to decide the appeal on merits of the case as this Court has not expressed any opinion on the merits of the case.

Issues:
1. Validity of notice issued under section 148 of the Income Tax Act.
2. Jurisdiction of the Assessing Officer in re-opening the income tax return.
3. Availability of alternative remedy of appeal.
4. Violation of principles of natural justice.
5. Pre-deposit requirement for filing an appeal.
6. Competency of the appellate authority to decide on the material before issuing the show-cause notice.

Issue 1: Validity of notice issued under section 148 of the Income Tax Act:
The petitioner challenged the notice issued under section 148 of the Income Tax Act, claiming it to be illegal, arbitrary, and beyond the jurisdiction of the Assessing Officer. It was contended that the Assessing Officer did not obtain the necessary approval of the specified authority under section 151 of the Act before issuing the notice. The petitioner argued that the reasons recorded for re-opening the assessment were not sustainable and lacked proper application of mind.

Issue 2: Jurisdiction of the Assessing Officer in re-opening the income tax return:
The petitioner's shares were traded on the Bombay Stock Exchange, and the income tax return for the year 2013-2014 was re-opened by the Assessing Officer. The petitioner's counsel argued that the reasons for re-opening the assessment were not valid, citing judgments from the High Courts of Bombay and Delhi to support the contention that the notice under section 148 could be challenged despite the availability of an alternative appeal remedy.

Issue 3: Availability of alternative remedy of appeal:
The respondent's counsel argued that the petition should be dismissed due to the availability of an alternative and efficacious remedy through an appeal before the Commissioner. It was emphasized that all grounds raised in the petition could be addressed before the appellate authority, and the petitioner should follow the proper appeal process rather than seeking redress through a writ petition.

Issue 4: Violation of principles of natural justice:
The petitioner's counsel asserted that the violation of the principle of natural justice, lack of jurisdiction, or the requirement of pre-deposit for filing an appeal could justify the court's intervention through a writ petition. However, it was noted that the assessment order was appellable, and the pre-deposit condition could not be waived, limiting the scope of the writ petition.

Issue 5: Pre-deposit requirement for filing an appeal:
The petitioner's inability to pay the substantial demand amount and the mandatory pre-deposit condition for filing an appeal were highlighted as reasons for seeking relief through the writ petition. The petitioner challenged the jurisdiction of the authority primarily on the grounds of insufficient material before the Assessing Officer to initiate proceedings under section 148 of the Income Tax Act.

Issue 6: Competency of the appellate authority to decide on the material before issuing the show-cause notice:
The court noted that the appellate authority was competent to determine whether there was sufficient material before issuing the show-cause notice. It was emphasized that the show-cause notice had become irrelevant following the final assessment order, and the appellate authority was best suited to assess the merits of the case. The court dismissed the petitions but clarified that the dismissal would not hinder the appellate authority from deciding the appeal on the case's merits.

In conclusion, the High Court of Madhya Pradesh dismissed the petitions challenging the notice issued under section 148 of the Income Tax Act, emphasizing the availability of the alternative remedy of appeal before the Commissioner. The court highlighted the limitations of a writ petition in cases where an appeal process exists and underscored the appellate authority's competence in assessing the merits of the case.

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