NAYNABEN SUBHASHBHAI PACHCHIGAR vs. INCOME TAX OFFICER WARD 1(3)(3)

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SCA/20650/2018HC GujaratGJHC24074944201818 January 2021Author: HONOURABLE MR. JUSTICE J.B.PARDIWALA,HONOURABLE MR. JUSTICE ILESH J. VORA3 pages
AI SummaryDismissed

What did the High Court hold?

The High Court held that since the final order of assessment for Assessment Year 2013-14 had already been passed on December 6, 2018, the writ applicant had an alternative and efficacious remedy of filing an appeal before the Appellate Authority in accordance with law. The Court found no good reason to grant any relief in the present writ application. Consequently, the writ application was rejected, the notice was discharged, and the ad-interim relief granted earlier was vacated. The ratio is that a writ petition is not the appropriate forum to challenge assessment proceedings once a final assessment order has been passed, and the assessee should pursue the statutory appellate remedy.

What were the facts?

The writ applicant, Naynaben Subhashbhai Pachchigar, filed a writ application challenging a notice dated March 27, 2018, issued by the Income Tax Officer Ward 1(3)(3) under Section 148 of the Income Tax Act, 1961, for reopening the assessment for Assessment Year 2013-14. The applicant also challenged orders dated July 2, 2018, and October 19, 2018, disposing of objections raised under Section 147. A coordinate bench had previously allowed amendment to the prayer clause and issued notice, permitting the respondent to proceed but not pass a final order without court permission. However, the final assessment order was passed by the respondent on December 6, 2018, and communicated to the applicant on December 28, 2018, before the notice was returnable.

What were the issues?

1. Whether the High Court should entertain a writ petition challenging a notice under Section 148 and orders disposing of objections under Section 147 when a final assessment order has already been passed for the relevant Assessment Year 2013-14. The assessee argued that the notice under Section 148 and the subsequent orders disposing of objections were flawed and sought to quash them. The assessee also sought to challenge the final assessment order by amending the prayer in the writ petition. The revenue contended that the assessee had an alternative remedy available. 2. Whether the writ applicant should be granted relief in the present writ application given that a final order of assessment has been passed. The assessee sought to quash the notice and orders and stay their operation. The revenue, by implication, sought dismissal of the writ petition, as the assessment proceedings had culminated in a final order.

Which sections of the Income-tax Act were involved?

Section 148,Section 147

AI-generated summary — verify with the full judgment below

Cause title — parties, addresses and appearances
C/SCA/20650/2018 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 20650 of 2018 ========================================================== NAYNABEN SUBHASHBHAI PACHCHIGAR Versus INCOME TAX OFFICER WARD 1(3)(3) ========================================================== Appearance: MR SHAKEEL A QURESHI(1077) for the Petitioner(s) No. 1 MRS KALPANAK RAVAL(1046) for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MR. JUSTICE J.B.PARDIWALA and HONOURABLE MR. JUSTICE ILESH J. VORA Date : 18/01/2021

ORAL ORDER (PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)

1.

Drat amendment, as prayed for is allowed. The same shall be carried out at the earliest.

2.

By this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs: “(A) Admit this petition. (B) Allow this petition, issue appropriate writ, order or direction against the respondent herein, and be pleased to quash and set aside notice dated 27.3.2018 (Annexure – B) issued by the respondent under Section 148 of the Act, and the order dated 19.10.2018 and dated 2.7.2018 (Annexure – A) passed by the respondent desposing of the objections raised by the petitioner under Section 147 of the Income Tax Act, 1961, for the Assessment Year 2013-14, in the interest of justice. (C) Pending admission hearing and final C/SCA/20650/2018 ORDER disposal of this petition, this Hon'ble Court be pleased to stay operation, implementation and execution of the notice dated 27.03.2018 (Annexure -B) issued by the respondent under Section 148 of the Act, and the order dated 19.10.2018 and 2.7.2018 (Annexure – A) passed by the respondent disposing of the objections raised by the petitioner under Section 147 of the Income Tax Act, 1961 for the Assessment Year 2013-14, in the interest of justice. (D) This Hon'ble Court be pleased to grant any other and further reliefs as deemed fit and proper in the interest of justice.”

3.

This appears to be a case of reopening of the Assessment for the A.Y. 2013-14 under Section 147 of the Income Tax Act, 1961 (for short 'the Act, 1961' ) on the ground that the income chargeable to tax for the relevant A.Y has escaped assessment.

4.

On 07.01.2019, the coordinate Bench of this Court passed the following order : “Leave to amend the prayer clause. Heard Mr. Shakeel Qureshi, learned advocate for the petitioner. Issue Notice returnable on 18th February, 2019. By way of ad-interim relief, the respondent is permitted to proceed further pursuant to the impugned notice; he, however, shall not pass the final order without the prior permission of this court. Direct Service is permitted.

5.

The picture that emerges from the materials on record, more particularly the draft amendment is that much before the coordinate Bench issued notice vide order dated 07.01.2019, the order of Assessment had already been passed by the respondent dtd 06.12.2018 and the same was communicated to the writ applicant C/SCA/20650/2018 ORDER on 28.12.2018. By way of amendment, the writ applicant now seeks to challenge the final order of Assessment in the present writ application.

6.

We have heard Mr. Shakeel A. Qureshi, the learned counsel assisted by Ms. Reshma Rauma, the learned counsel appearing for the writ applicant and Mrs. Kalpana K. Raval, the learned Standing counsel appearing for the respondent.

7.

We are of the view that as the final order of assessment has already been passed way back on 06.12.2018, the writ applicant should file an Appeal before the Appellate Authority in accordance with law. We see no good reason to grant any relief in the present writ application as prayed for.

8.

With the above, this writ application stands rejected. The notice is discharged. Ad-interim relief granted earlier stands vacated. (J. B. PARDIWALA, J) (ILESH J. VORA,J) P.S. JOSHI

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