9911796707
TMI Blog2014 (1) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... lpable injustice - Decided in favour of assessee. - Writ Petition (L) No. 3359 of 2013 - - - Dated:- 24-12-2013 - Mohit S. Shah And M.S. Sanklecha , JJ. For the Appellant : Percy Pardiwala and N.S. Thakkar. For the Respondent : Mrs. S.V. Bharucha. ORDER:- PER : Court At the instance and request of Counsel for both the sides, petition is taken up for final disposal at the stage of admission. 2. By this Petition under Article 226 of the Constitution of India, the order of Assessment dated 29 November 2013 passed by the Assessing Officer under Section 143(3) read with Sections 263 and 254 of the Income Tax 1961 (the Act) passed for Assessment Year 2005-06 is being challenged. The primary challenge to the impugned order dated 29 November 2013 is that the same has been passed in breach of principles of natural justice i.e. absence of fair opportunity of making a representation and in total defiance of the orders dated 18 September 2012 and 3 April 2013 passed by of the Income Tax Appellate Tribunal (the Tribunal). 3. Briefly, the facts leading to this petition are :- (a) On 5 October 2005 the petitioner filed its return of income for the Assessment Yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome Tax under Section 263 of the Act. In the order dated 30 December 2010, the Assessing Officer disallowed the entire claim of the petitioner for deduction under Section 80IA of the Act; (e) Being aggrieved by the order of assessment dated 30 December 2010, the petitioner filed an appeal to the Commissioner of Income Tax(Appeals). By an order dated 13 October 2011 the Commissioner of Income Tax(Appeals)dismissed the petitioner's appeal. Consequent to the above dismissal, the petitioner filed an appeal to the Tribunal. The Tribunal by its order dated 3 April 2013 took note of the fact that by its earlier order dated 18 September 2012 in an appeal filed from the order dated 30 March 2010 passed under Section 263 of the Act, while dismissing the petitioner's appeal, had specifically directed the Assessing Officer to consider the petitioner's claim for deduction under Section 80IA of the Act being uninfluenced by the observations either in the order dated 30 March 2010 of the Commissioner of Income Tax or by the order of assessment of the Assessing Officer for the Assessment year 2006-2007. In view of the above, the Tribunal set aside the order dated 30 December 2010 of the Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hus, the petitioner did not get sufficient time to respond to the notice and this was a breach of principles of natural justice; and (b) In any event, on merits also the impugned order dated 29 November 2013 of the Assessing Officer is in breach of the directions of the Tribunal as contained in the Tribunal orders dated 18 September 2012 and 3 April 2013 wherein the Assessing Officer has been directed to pass an order without being influenced by the observations made in the order dated 30 March 2010 of the Commissioner of Income Tax under Section 263 of the Act as also the Assessment Order passed for the Assessment Year 2006-07. However, the impugned Assessment Order denies the petitioner its claims for deduction under Section 80IA of the Act by relying upon the finding in the both the aforesaid orders. 5. As against the above, Mrs. Bharucha, Counsel appearing for the revenue in support of the impugned order submits:- (a) In case the petitioner is aggrieved by the impugned order dated 29 November 2013 of the Assessing Officer, it has an alternative remedy of appeal provided under the Act to the Commissioner of income Tax(Appeals). In view of the above, this petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 27 September 2013, calling upon the petitioner to show cause why its claim for deduction under Section 80IA of the Act should not be disallowed. This denial of benefit under Section 80IA of the Act was upon various grounds such as date of commencement of business and fulfilling eligibility criteria, etc under Section 80IA of the Act. However, the petitioner was given less then 24 hours to respond to the show cause notice i.e. before 3.30 p.m. on 28 November 2013. The contention of the revenue that there was no breach of natural justice inasmuch as opportunity had been granted to the petitioner earlier to furnish evidence by granting them personal hearing and the petitioner had failed to furnish any evidence. This may not be so in the present facts for the reason that if the petitioner had already been given sufficient opportunity and the petitioner had failed to lead the appropriate evidence then there was no occasion for the Assessing officer to have issued the Show cause notice dated 28 November 2013 calling upon the petitioner to show cause why its claim for deduction under Section 80IA should not be disallowed. In fact the issue of show cause notice on 27 November 2013 is its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w of the above, we pass the following order:- (i) The impugned Assessment order dated 29 November 2013 (Ex. F) for Assessment year 2005-06 is quashed and set aside; (ii) The assessment for the Assessment year 2005-06 is remanded to the Assessing Officer with a direction to take on record the submissions along with documents in the form of a compilation submitted by the petitioner on 29 November 2013 to the Assessing Officer; and (iii) The petitioner will thereafter be given an opportunity of hearing by the Assessing Officer before passing a fresh assessment order in accordance with law, including taking into consideration the observations made by the Tribunal in its orders dated 18 September 2012 (Income Tax Appeal No.706/Chd/2010) and 3 April 2013 (Income Tax Appeal No.1172/Chandi/2011). 10. It is clarified that we have not examined the merits of the controversy between the parties including the issue whether the impugned order has been passed on the basis of the order dated 30 March 2010 of the Commissioner of Income Tax and on the basis of the order of assessment for the Assessment year 2006-07. Therefore all contentions are kept open to be urged before an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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