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TMI Blog2021 (9) TMI 325X X X X Extracts X X X X X X X X Extracts X X X X ..... the stand taken by the assessee before us as well as before the learned Single Bench is unacceptable. Hon'ble Supreme Court had observed that during the pendency of the appeal before it, stay of reassessment was granted, which was directed to be continued till the disposal of the writ petitions before the High Court. Assuming the learned Senior Counsel for the appellant is correct, after the order was passed by the Hon'ble Supreme Court, the order of stay stood revived, which would mean that even after, the order of stay was not extended beyond 08.06.2014, which is deemed to have been extended from 09.06.2014 pursuant to the judgment/order of the Hon'ble Supreme court dated 08.12.2016. In fact, the assessee was basking under the said interim order and therefore, it would not lie in the mouth of the assessee to now contend that the proceedings are barred by limitation The argument on behalf of the appellant wants us to adopt a laser edge approach and if such proposition is to be accepted, it would result in great prejudice to the litigant, who approaches the Court. There are several decisions which hold that even if the interim orders are not extended, as long as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant (In both Appeals) : Mr.R.V.Easwar, Senior Counsel for Mr.G.Baskar For the Respondent (In both Appeals) : Ms.Hema Muralikrishnan, Senior Standing Counsel COMMON JUDGMENT T.S.SIVAGNANAM, J. The appellant, in these appeals, is the writ petitioner in W.P.Nos.3005 of 2013 and 28434 of 2014, which were dismissed by common order dated 23.04.2021. 2.In this judgment, the appellant shall be referred to as the assessee and the respondent as the Revenue . 3.In W.P.No.3005 of 2013, the assessee prayed for issuance of Writ of Certiorari to quash the order passed by the respondent dated 11.01.2013, by which the respondent rejected the objections filed by the assessee to the reopening of the assessment for the assessment year 2007-08. 4.The prayer sought for in W.P.No.28434 of 2014 was to quash the order of assessment passed by the respondent-Revenue dated 24.10.2014, under Section 143(3) read with Section 147 of the Income Tax Act, 1961 (hereinafter referred to as the Act ) along with a notice of demand under Section 156 and notice under Section 247 read with Section 271(1)(c) of the Act for the assessment year 2007-08. 5.The learned Sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t off of the income against the loss, accepted the ground and directed the Assessing Officer to set off the income from interest from the loss incurred. The said order of the CIT(A) pertaining to the assessment years 2005-06 and 2006-07 were given effect to by order dated 21.06.2012. 10.So far as the assessment year 2008-09 is concerned, the assessee submitted that it is only an intimation under Section 143(1) of the Act thereby, the return of income submitted by the assessee stood accepted. While so, the assessee received a notice from the respondent dated 20.04.2011, under Section 148 of the Act stating that he has reason to believe that there is escapement of income in relation to the assessment year 2007-08 and called upon the assessee to file their return of income. The assessee by letter dated 28.04.2011, requested the return filed originally be treated as a return in response to the notice under Section 148 of the Act and requested for furnishing the reasons for reopening and by communication dated 30.05.2011, the reasons for reopening were furnished. Along with the reasons for reopening, the respondent issued notice under Section 143(2) of the Act. The assessee would c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f cases and dismissed by order dated 04.07.2014 on the ground that it was not maintainable. The assessee filed Special Leave Petition before the Hon'ble Supreme Court challenging the order dated 04.07.2014 and the matter was pending before the Hon'ble Supreme Court. While so, the respondent issued notice dated 12.09.2014 proposing to proceed with the reassessment. This was rejected by the assessee vide letter dated 22.09.2014, not only on the ground of Special Leave Petition was pending, but on other grounds as well. The respondent issued another notice dated 17.09.2014, which is stated to have been received by the assessee on 20.10.2014 proposing to proceed with the reassessment and in the interregnum, an order was passed on 17.10.2014 rejecting the objections to reassessment on the ground of lack of jurisdiction. It is submitted that the letter dated 17.09.2014 has been pre-dated. On 24.10.2014, the assessee addressed the Assessing Officer stating that the notice is beyond the period of limitation as prescribed under Sections 153(2), 153(4), Explanation (ii) and the proviso thereunder. This was explained by the assessee stating that the time limit for completion of assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... already become time barred. Therefore, it is submitted that the reassessment proceedings is barred by time and wholly without jurisdiction. Further, it is submitted that the writ petition was dismissed on 04.07.2014, the Revenue was represented by their Standing Counsel and they had clear knowledge of the dismissal of the writ petition and the closing of the connected miscellaneous petitions. Therefore, the stand taken by the Assessing Officer stating that he had received the copy of the order passed in the writ petition only on 04.09.2014 cannot be accepted. 17.The learned Senior Counsel also referred to the circular issued by the Central Board of Direct Taxes (CBDT) with regard to the role of the Standing Counsel for the Department and submitted that the Department having been represented by a counsel are aware of the fact that there was no interim order beyond 08.06.2014 and that the writ petition was dismissed on 04.07.2014. 18.It is further submitted that the assessee, in the writ petition, had also challenged the reassessment proceedings on merits and referred to the order passed by the CIT(A) dated 28.03.2012 and the remand report, which was called by the CIT(A), d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within the said time, it is the order which is time barred. 21.The learned Senior Counsel referred to the decision of the Privy Council in General Accident Fire and Life Assurance Corporation, Ltd. v. Janmahomed Abdul Rahim reported in AIR 1941 PC 6. 22.On the above grounds, the learned Senior Counsel sought for setting aside the order rejecting the objections filed by the assessee to the reassessment as well as the order of reassessment dated 24.10.2014. 23.Ms.Hema Muralikrishnan, learned Senior Standing Counsel appearing for the respondent submitted that the writ petition challenging the order of reassessment is not maintainable, as the assessee has an effective alternate remedy of filing an appeal before the CIT(A) and without exhausting the same, the assessee may not be permitted to question the correctness of the reassessment proceedings by way of a writ petition. Further, it is submitted that the objections raised by the assessee for the reopening had been properly construed by the Assessing Officer and a speaking order has been passed on 11.01.2013 and thereafter, reassessment proceedings were commenced and concluded by order dated 24.10.2014 and ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heads exist, but submitted a letter stating that the limitation of 60 days needs to be computed from the date of the Court order, i.e., from 04.07.2014 in view of the provisions of Section 153(2) of the Act and the time limit expired on 03.09.2014. The Assessing Officer pointed out that this submission is not tenable, as if the Court order is not received by the Revenue for a period of 60 days from the date of the order. It is not practicable for any order to be passed within 60 days in the absence of knowledge as to what is the finding rendered by the Court. Therefore, the assessee would contend that unless and until the order is received by the Assessing Officer, it cannot be stated that the stay granted has not been vacated. Further, the Assessing Officer pointed out that if any attempt is made by the Assessing Officer to proceed with the matter is stayed by the Court without the knowledge of the contents of the order, it would lead to a situation where contempt proceedings may be initiated and therefore, it was submitted that the intention of the legislature as laid down in the proviso should be understood as 60 days from the date of receipt of the Court's order not on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of India and others reported in [(2011) 13 SCC 534] and Housing Board Haryana vs. Housing Board Colony Welfare Association reported in [(1995) 5 SCC 672]. 31.On the above grounds, the learned Senior Standing Counsel sought to sustain the order in both the writ petitions and also pointed out that the learned Writ Court had granted liberty to the assessee to file an appeal, if so advised. 32.We have elaborately head the learned counsels for the parties and carefully perused the materials placed on record. 33.The challenge to the reassessment proceedings is primarily and largely on the ground of limitation. The challenge to the order rejecting the objections filed by the assessee to the reopening proceedings has merged with the impugned order of reassessment dated 24.10.2014 in which, not only with regard to the justifiability of the reopening has been mentioned, coupled with the fact as to how in the opinion of the Assessing Officer, the order of reassessment is not time barred. After referring to the finding on the aforementioned two points, the Assessing Officer proceeded to complete the assessment under Section 143(3) read with Section 147 of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be computed. The notice under Section 148 of the Act for reopening the assessment for the assessment year 2007-08 is dated 20.04.2011. The assessee submitted their objections dated 08.06.2011, which were rejected by order dated 11.01.2013. The said order was subject matter of challenge in W.P.No.3005 of 2013. It is not in dispute that an order of interim stay was granted on 06.02.2013 staying all further proceedings pursuant to the order dated 11.01.2013, relating to the assessment year 2007-08 on the file of the respondent. The order of interim stay continued to remain in force. 37.It is submitted by the learned Senior Counsel for the assessee that the order of interim stay was extended from time to time and till 08.06.2014. It is the submission that beyond 08.06.2014, the order of interim stay was not extended. The writ petition was dismissed by order dated 04.07.2014. The copy of the reported decision in the case of Joint Commissioner of Income-tax vs. Kalanithi Maran reported in [(2014) 366 ITR 453 (Madras)] shows that there were writ appeals as well as writ petitions, which were heard as a batch by the Hon'ble Division Bench. In the preamble of the said order, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch was that the writ petitions were not maintainable and all the issues involved are adjudicatory issues. Accordingly, all the writ petitions were dismissed. Consequently, the writ appeals filed by the Revenue against the interim orders were allowed and time was granted to the assessee to file statutory appeal before the appellate authority. Thus, we find that the Hon'ble Division Bench did not examine the merits of each and every cases, as the issues framed for consideration were purely questions of law. 39.As mentioned above, the lead cases before the Hon'ble Division Bench were writ appeals filed by the Revenue challenging the interim orders granted in the writ petition. There were writ appeals also viz., W.A.Nos.347 to 349 of 2014, those writ appeals obviously did not pertain to the appellant, but pertained to others and the writ petitions were tagged along with the writ appeals. Therefore, the situation is very clear, which has been understood not only by the assessee as well as the Revenue that not only the correctness of the interim orders granted in the writ petitions to be decided by the Hon'ble Division Bench, but also the maintainability of the writ peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts as not maintainable. The aforesaid view taken is contrary to the law laid down by this Court in Calcutta Discount Limited Company vs. Incom Tax Officer, Companies District I, Calcutta Anr. [(1961) 41 ITR 191 (SC)]. We, thus, set aside the impugned judgments and remit the cases to the respective High Courts to decide the writ petitions on merits. We may make it clear that this Court has not made any observations on the merits of the cases, i.e. the contentions which are raised by the appellant challenging the move of the Income Tax Authorities to re-open the assessment. Each case shall be examined on its own merits keeping in view the scope of judicial review while entertaining such matters, as laid down by this Court in various judgments. We are conscious of the fact that the High Court has referred to the Judgment of this Court in Commissioner of Income Tax and others vs. Chhabil Dass Agarwal, [(2013) ITR 357 (SC)]. We find that the principle laid down in the said case does not apply to these cases. During the pendency of these appeals, stay of re-assessment was granted, which shall continue till the disposal of the writ petitions before the High Courts. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Hon'ble Supreme Court on 08.12.2016, restoring the position, which stood as on 08.06.2014, are not entitled to maintain a challenge to the reopening/reassessment on the ground of limitation. 45.As mentioned above, the Hon'ble Division Bench dismissed the writ appeals and writ petitions by judgment/order dated 04.07.2014. The writ petition in W.P.No.28434 of 2014 was filed on 28.04.2014. As pointed out by the Assessing Officer, the assessee in their letters dated 22.09.2014 and 23.10.2014, did not raise any objection regarding limitation, their prayer was to keep the proceedings in abeyance as they have filed Special Leave Petition before the Hon'ble Supreme Court. It is only on 24.10.2014, the date on which the reassessment order was passed, the assessee raised a plea regarding limitation. Simultaneously they were pursuing the matter before the Hon'ble Supreme Court and as could be seen from the judgment/order of the Hon'ble Supreme Court dated 08.12.2016 reported in (2017) 390 ITR 0010 (SC), the appellant-assessee had the benefit of an order of stay of reassessment proceedings. Therefore, the assessee's plea that the proceedings are barred b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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