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TMI Blog2021 (9) TMI 1104X X X X Extracts X X X X X X X X Extracts X X X X ..... on to the Assessing Officer - HELD THAT:- Notice under Section 142(1) read with Section 129 dated 02.11.2016, was issued to the assessee in connection with the assessment for the assessment year under consideration, directing them to appear in person and furnish as many as 30 details, which include the date of incorporation along with the details of the merger/de-merger or amalgamation, since the year in which the company was incorporated; details of the share holding percentage of the company, etc. In response to the said notice, the assessee, by reply dated 15.12.2016, gave a brief background of the company - It would be difficult for us to read this sentence in the reply dated 15.12.2016 to mean that the assessee had questioned the juris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the alternative remedy provided under the provisions of the Income Tax Act, 1961. X X X X Extracts X X X X X X X X Extracts X X X X ..... n holding that the assessee had not questioned the exercise taken by the Assessing Officer before passing the impugned order, nor raised any objection regarding the jurisdiction. In fact, by letter dated 15.12.2016, the assessee intimated the respondent about the fact of the merger and also pointed out that there is a jurisdictional defect and the notices issued for the Assessment Year 2013-14 were not in accordance with law. Further more, it was submitted that for the Assessment Year 2013-14, both the entities were in existence and the online system of filing of return does not allow two companies to file return for the same assessment year and therefore, the return for the assessment year under consideration was filed in the name of the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the name of non-existing transferor company. 5.The Revenue seeks to sustain the order passed by the learned Single Bench firstly on the ground that as against the draft assessment order, a Writ Petition is not maintainable, as it is always open to the assessee to file an objection before the Dispute Resolution Panel to question the correctness of the draft assessment order. That apart, the assessee has got another remedy, after the assessment is completed by the Assessing Officer, by filing an appeal before the Commissioner of Income Tax (Appeals). 6.The learned Standing Counsel placed reliance on the decision of the Division Bench of this Court in the case of M/s.Oasys Green Tech Private Ltd. vs. Income Tax Officer [W.A.Nos.534 and 535 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee, by reply dated 15.12.2016, gave a brief background of the company in the first three paragraphs of the said letter and what we can gather from the said communication qua the jurisdiction is the statement of the assessee that the notices for the assessment have not been served to the company as required by the statute in prescribed and proper manner and their submissions on merits would be without prejudice to the said position. It would be difficult for us to read this sentence in the reply dated 15.12.2016 to mean that the assessee had questioned the jurisdiction of the Assessing Officer to exercise power as is canvassed before us, as well as what was canvassed before the learned Single Bench. Thus, the Assessing Officer appears to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decided before the authorities in the remedies provided to the assessee under the Act and not before a Writ Court. 11.The learned Writ Court, while dismissing the Writ petition, had made certain observations, some of which may affect the assessee when we relegate the assessee to avail the remedies under the Act. Therefore, we are of the view that all those observations and the findings should be vacated and the assessee should be free to raise all issues before the assessing authority, before whom they choose to approach, challenging the draft assessment order. 12.In the result, the Writ Appeal is dismissed and the findings rendered by the learned Writ Court while dismissing the Writ Petition are vacated in its entirety and the assessee i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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