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2017 (6) TMI 734 - HC - Income TaxValidity of final assessment order u/s 143(3) r/w Section 144(C)(13) - Remedy available to the petitioner as against the order passed under Section 144C(13) - maintainability of writ petition - no objections received within the period specified - Held that - Assessing Officer cannot proceed to pass the final order till the Dispute Resolution Panel passes an order as stated supra. Once the objection is filed within the period of limitation, consideration of the same is vested only with the Dispute Resolution Panel as provided under Section 144C(5),(6),(7) & (8) of the said Act and as such the Assessing Officer cannot decide such objection. Therefore, filing of such objection before the Assessing Officer within time itself will not get over the period of limitation, if such filing before the Dispute Resolution Panel was after such period. Whether final order passed by th 2nd respondent on 18.11.2016 cannot be treated as the one passed in accordance with Section 144C(13)? - Held that - Dismissal or rejection of the objection and communication of the same has to be treated and construed as a direction given to the Assessing Officer to complete the assessment as per draft order. Only when the panel choses to reduce or enhance the variation proposed, it can give any specific directions. Therefore, I do not think that the petitioner is justified in contending that the final order is not an order passed under Section 144C(13) of the said Act. Remedy available as against the order passed under Section 144C(13) - Held that - Petitioner is entitled to file an appeal before the Appellate Authority as contemplated under Section 246(1)(a) of the said Act, which covers an order passed against the assessee under Section 144 of the said Act as well. When such statutory appellate remedy is available to the petitioner, this Court is not inclined to entertain this writ petition by going into the contentions raised on the merits of the matter by either parties. It is well settled that when a statutory appellate remedy is available, more particularly in fiscal matters, parties should not be permitted to resort to the remedy under Article 226 of the Constitution of India.
Issues Involved:
1. Maintainability of the writ petition. 2. Delay in filing objections before the Dispute Resolution Panel (DRP). 3. Power of the DRP to condone delay. 4. Validity of the final assessment order passed by the Assessing Officer (AO). 5. Availability of alternative statutory remedy. Detailed Analysis: 1. Maintainability of the writ petition: The respondents argued that the writ petition is not maintainable as the petitioner has a statutory right of appeal before the appellate forum. The court noted that when a statutory appellate remedy is available, especially in fiscal matters, parties should not resort to Article 226 of the Constitution of India. Therefore, the writ petition is dismissed with liberty to file an appeal before the 1st Appellate Authority. 2. Delay in filing objections before the Dispute Resolution Panel (DRP): The petitioner filed objections before the DRP on 29.04.2016, one day beyond the 30-day limit mandated by Section 144C(2) of the Income Tax Act. The DRP rejected the objections solely on the ground of delay. The court found that the petitioner deliberately misled the DRP by claiming the draft assessment order was served on 31.03.2016 instead of 29.03.2016 to bring the filing within the limitation period. 3. Power of the DRP to condone delay: The court held that the DRP does not have the power to condone the delay in filing objections. The DRP rightly rejected the objections as barred by limitation. The petitioner’s contention that the DRP should have condoned the delay was dismissed. 4. Validity of the final assessment order passed by the Assessing Officer (AO): The petitioner argued that the final assessment order dated 18.11.2016 is barred by limitation and not in accordance with Section 144C(13) of the Income Tax Act. The court held that the rejection of objections by the DRP on 10.11.2016 effectively confirmed the draft assessment order, which serves as a direction to the AO to complete the assessment. The final order passed on 18.11.2016 was within the period of limitation and valid under Section 144C(13). 5. Availability of alternative statutory remedy: The court emphasized that the petitioner has an alternative statutory remedy to appeal against the final assessment order under Section 246(1)(a) of the Income Tax Act. Given this available remedy, the court declined to entertain the writ petition. The petitioner was granted liberty to file an appeal before the 1st Appellate Authority within four weeks. Conclusion: The writ petition was dismissed, and the petitioner was directed to pursue the statutory appellate remedy. The court found that the DRP correctly rejected the objections due to the delay and that the final assessment order was valid and within the limitation period.
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