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2022 (4) TMI 689 - HC - Income TaxReopening of assessment u/s 147 - mandation of filling objection prior to the filing the present writ petition - Non filing of objection against reopening by assessee - HELD THAT - This Court is of the view that the present writ petition is not maintainable inasmuch as the petitioner has not followed the procedure laid down in GKN Driveshafts (India) Ltd. 2002 (11) TMI 7 - SUPREME COURT prior to the filing of present writ petition. It is pertinent to mention that in the said judgment, it has been held by the Supreme Court that if an assessee is aggrieved by a reassessment notice, he is entitled to file objections before the Assessing Officer, who is bound to dispose of the same by way of a speaking order. Consequently, this Court is of the view that since the alternative effective remedy has not been resorted to, the present writ petition is not maintainable. Though in the instant case, the petitioner has written a letter in response to the reasons received by it, yet it has not filed any objections. In fact, in the said letter, a Power of Attorney, copy of ITR, Bank statement have only been enclosed and no specific objection has been raised. Consequently, this Court is in agreement with the preliminary objection raised by the learned counsel for the respondentrevenue that the present writ petition is premature.
Issues:
Challenge to notice under Section 148 of the Income Tax Act, 1961. Validity of manual approval/sanction without DIN and date. Requirement of filing objections before filing a writ petition. Analysis: Issue 1: Challenge to notice under Section 148 of the Income Tax Act, 1961 The petitioner challenged the notice dated 31st March, 2021, issued under Section 148 of the Income Tax Act, 1961. The notice was signed and issued on the same day, with the petitioner receiving an SMS notification the next day. The petitioner contended that the manual approval/sanction by the Additional CIT, lacking a DIN and date, should be considered invalid. The petitioner relied on Circular No.19/2019 issued by the Central Board of Direct Taxes and argued that the sanction was granted under a repealed section of the Act. However, the court issued notice on this issue for further consideration. Issue 2: Validity of manual approval/sanction without DIN and date The petitioner argued that the manual approval/sanction without a DIN and date should be deemed invalid. The respondent's counsel contended that the petition should be dismissed as the petitioner did not file objections before the writ petition, citing the Supreme Court judgment in GKN Driveshafts (India) Ltd. v. Income Tax Officer, (2003) 259 ITR 19 (SC). The petitioner referenced a judgment of the Gujarat High Court to counter this argument, but the court held that the writ petition was premature as the petitioner did not follow the procedure laid down in the Supreme Court judgment. The court emphasized the importance of filing objections before resorting to a writ petition and dismissed the petition with liberty for the petitioner to raise objections before the Assessing Officer in accordance with the Supreme Court judgment. Issue 3: Requirement of filing objections before filing a writ petition The court emphasized the importance of following the procedure of filing objections before resorting to a writ petition, as established in the Supreme Court judgment in GKN Driveshafts (India) Ltd. The court noted that while the petitioner had responded to the reasons received, no specific objections were raised. The court rejected the petitioner's attempt to distinguish the Supreme Court judgment based on a Gujarat High Court decision, stating that it is not open for a High Court to distinguish a clear and categorical judgment of the Apex Court. Consequently, the court found the writ petition premature and not maintainable due to the failure to exhaust the alternative remedy of filing objections before the Assessing Officer.
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