2020 (9) TMI 1024 - HC - Income Tax

Reopening of assessment u/s 147 - No notice issued u/s 148 - alternate remedy - as per revenue that the notice was dispatched to the appellant writ petitioner from Teynampet Post Office through speed post and also produced the proof before the learned Single Judge - HELD THAT - Learned Single Judge was fully justified in dismissing the said writ petition, as the appellant has got an effective alternate remedy by way of an appeal before the Commissioner of Income Tax (Appeals) concerned. The Income Tax Act, 1961, being a physical Statute, has provided for hierarchy of remedies under that and there is no justification for the assessee to bypass such an appellate remedy. The point canvassed before us as well as before the learned Single Judge is not a pure question of law, but a pure question of fact with the limits of law involved in it. Therefore, if the facts are in dispute, it is but appropriate for the appellant assessee to avail the alternate remedy provided under the Act, as the Appellate Authority is entitled to re-appreciate the facts, call for records and then take a decision. Writ appeal is dismissed, the order dated 07.11.2019 passed in the said writ petition is confirmed and the appellant is directed to file the appeal before the concerned Commissioner of Income Tax (Appeals) within a period of 30 days from the date of receipt of a copy of this judgment.

Summary

Issues:
Challenge to assessment order under Income Tax Act for the assessment year 2011-12 based on non-service of notice under Section 148 of the Act.

Analysis:
The appellant challenged the assessment order under the Income Tax Act for the assessment year 2011-12, contending that the notice under Section 148 of the Act was not served, thus rendering the proceedings invalid. The Revenue, however, argued that the notice was dispatched via speed post and provided proof of dispatch. The learned Single Judge dismissed the writ petition, stating that the appellant cannot challenge the assessment's merits in a Writ Court without filing a regular appeal. The appellant was granted liberty to file an appeal within two weeks. The appellant further argued that despite repeated requests, the acknowledgment card was not provided, and the Assessing Officer did not respond to their letters. The appellant also raised queries under the Right to Information Act, but the Department claimed the records were unavailable. The Department's credibility was questioned by the appellant, but the counsel for the respondents contended that the notice was served correctly as per the Act's procedure.

The High Court upheld the Single Judge's decision, emphasizing that the appellant had an alternative remedy through an appeal before the Commissioner of Income Tax (Appeals). The Court noted that the Income Tax Act provides a hierarchy of remedies, and the appellant should not bypass the appellate remedy. The Court clarified that the issue was factual, not purely legal, and the Appellate Authority could re-examine the facts and records. The Act also allows further appeals to the Income Tax Appellate Tribunal and the High Court's Division Bench for substantial questions of law. Despite references to previous judgments, the Court declined to comment on the case's merits, affirming the Single Judge's decision to dismiss the writ petition due to the availability of an alternative remedy. The writ appeal was dismissed, directing the appellant to file an appeal before the Commissioner of Income Tax (Appeals) within 30 days, with the appeal to be considered without reference to the limitation period and decided on its merits and in accordance with the law. No costs were awarded, and the connected CMP was also dismissed.