2012 (10) TMI 289 - HC - Income Tax

Writ of certiorari - quashing an assessment order dated 29.2.2012 u/s 143(3) as it varies a draft assessment order dated 29.12.2011 u/s 143(3) r.w.s. 144C - disallowances of deduction u/s 80IC - Held that - No intend of exercising jurisdiction under Article 226 for this matter as it involves several points, some of which require a detailed consideration on disputed questions of fact including as to whether the petitioner had made false statements as indicated earlier. It would serve no purpose and would indeed be cumbersome to have these issues decided in different proceedings. There also arises the issue raised by the learned Advocate General to the effect that the petitioner had abandoned the right to proceed under section 144C and had chosen instead to proceed to a regular assessment. Whether such a course is permissible in view of section 144C or not is another matter. If it is permissible, it may well involve a further disputed question viz. whether the petitioner had in fact done so viz. chosen to proceed to a regular assessment and not under section 144C, therefore it is not considered appropriate to deal with these questions in this writ petition. this Writ Petition on this hypothetical basis need to be rejected - leave it to the CIT(A) to use his discretion and judgment in this regard keeping in mind, of course the exigencies of his board and the nature of the other matters before him. It is desirable that the appeal is disposed of within six months from today.

Summary

Issues Involved:
1. Quashing of assessment order under section 143(3) of the Income Tax Act, 1961.
2. Validity of the notice of demand issued under section 156.
3. Rejection of the petitioner's request for a stay of recovery proceedings.
4. Jurisdiction of the Assessing Officer to make additions in the final assessment order not included in the draft assessment order.
5. Petitioner's right to proceed under section 144C.
6. Constitutionality of section 144C under Article 14 of the Constitution of India.
7. Validity of the notice of demand under section 220.

Issue-wise Detailed Analysis:

1. Quashing of assessment order under section 143(3) of the Income Tax Act, 1961:
The petitioner sought a writ of certiorari to quash the assessment order dated 29.2.2012, which varied the draft assessment order dated 29.12.2011 and included additional disallowances. The court noted that the petitioner's case fell within the provisions of section 144C, which outlines the procedure for draft assessment orders and the role of the Dispute Resolution Panel (DRP). The court did not express an opinion on the merits of the matter, suggesting that the petitioner should pursue the alternate remedy of an appeal before the Commissioner of Income Tax (Appeals) [CIT(A)].

2. Validity of the notice of demand issued under section 156:
The petitioner also challenged the notice of demand issued under section 156 pursuant to the impugned assessment order. The court did not delve deeply into this issue, as it was inclined to direct the petitioner to pursue the appeal process.

3. Rejection of the petitioner's request for a stay of recovery proceedings:
The petitioner's request for a stay of recovery proceedings was rejected by an order dated 19.3.2012. The court did not entertain the writ petition on this ground, emphasizing the availability of an alternate remedy through an appeal.

4. Jurisdiction of the Assessing Officer to make additions in the final assessment order not included in the draft assessment order:
The petitioner argued that the Assessing Officer (AO) had no jurisdiction to make additions in the final assessment order that were not included in the draft assessment order. The court acknowledged the importance of this issue but chose not to exercise jurisdiction under Article 226, as it involved detailed consideration of disputed facts and legal questions. The court suggested that the CIT(A) had the jurisdiction to decide all questions raised in the petitioner's appeal, including the validity of the additions made in the final assessment order.

5. Petitioner's right to proceed under section 144C:
The petitioner contended that the AO's actions denied them the opportunity to avail the provisions of section 144C, which allows objections to be filed before the DRP. The court recognized the significance of this issue but refrained from expressing an opinion, directing the petitioner to pursue the appeal process where these questions could be addressed comprehensively.

6. Constitutionality of section 144C under Article 14 of the Constitution of India:
The petitioner suggested that if it were held that the AO could make prejudicial variations in the final assessment order not included in the draft, section 144C could be challenged as violative of Article 14 of the Constitution. The court did not entertain this hypothetical and premature argument, allowing the petitioner to raise this point in future proceedings if necessary.

7. Validity of the notice of demand under section 220:
The petitioner argued that the notice of demand dated 15.3.2012 was bad in law for violating the provisions of section 220 by curtailing the statutory period of thirty days. The court did not find it necessary to address this issue in detail, as it intended to grant the petitioner sufficient time to address the notice in its order.

Conclusion:
The court dismissed the writ petition, directing the petitioner to pursue the appeal process before the CIT(A). The court emphasized that the CIT(A) had the jurisdiction to address all issues raised by the petitioner, including the validity of the assessment order and the additions made therein. The court also clarified that the petitioner could file a fresh writ petition or appropriate proceedings if necessary. The court granted the petitioner time to file an application for interim reliefs and directed that the notice of demand should not be implemented until the application was decided. The writ petition was disposed of with no order as to costs.