Taxpayer can not file income tax appeal and writ petition simultaneously : High Court

ORDER

Ms. Sonia Gokani, J. – The petitioner is before this Court seeking Court to issue a writ of mandamus and/or certiorari or any other appropriate writ or order to quash and set aside the notice dated 27-3-2021 issued by the respondent No. 1 for assessment year 2014-15 and the assessment order dated 30-3-2022 passed by the respondent, on the ground of the same being arbitrary, discriminatory and in violation of principles of natural justice.

2.1 The petitioner is engaged in the business of manufacturing of Dyes and Dyes intermediates and trading in chemicals. It filed its return on income for the assessment year 2014-15 on 31-10-2014, which was selected first for scrutiny and a detailed questionnaire with 42 queries was issued by the Assessing Officer on 5-7-2016.

The petitioner submitted the required details vide various communications and the original assessment by way of scrutiny assessment under section 143(3) of the Act has been finalised, where more particularly one of the queries relating to TDS deductions was raised. The petitioner submitted its reply and upon being satisfied, no addition was made during the scrutiny assessment. One of the grievance on the part of the petitioner is that it received a notice dated 27-3-2021 under section 148 for reassessment under section 147 of the Act for assessment year 2014-15. The reasons raised two issues; (a) TDS on freight expenses of Rs. 5,48,74,465/- and (b) Disallowance of excise duty expense claimed in the profit and loss account. Objections were raised to the said notice, wherein it pointed out that the reopening was beyond the period of four years and there being no failure on the part of the assessee to disclose fully and truly all material facts necessary and as all issues have been already gone into during the original assessment proceedings, it is a mere change of opinion.

3. Notice dated 1-2-2022 (received by courier on 4-2-2022) in related to that no response of the petitioner had been received and the notice had been issued on the ground that no specific query or details relating to the issues mentioned in the reasons recorded for reopening was sought.

4. It appears that thereafter, the assessment proceedings also have been completed and a show-cause notice culminated into the assessment. It further appears that the demand of notice also was raised under section 156 of the Act, after the order of 30-3-2022. Petitioner is before this Court seeking to question and challenge the non-following of the mandatory requirement of disposing of the objections raised by it.

5. We also have heard learned advocate Mr.Nitin Mehta for the petitioner, who submits that the petitioner saves to protect his own right has filed an appeal, however, the fact remains that the base order, which is in challenge before the Appellate Authority, is passed without following the required procedure of law and in complete breach of directions issued by the Hon’ble Apex Court. Noticing the fact that much water has flown after the objections were raised against the notice of reopening was issued and as the petitioner is already before the Appellate Authority, this Court does not deem it appropriate and detain this petition, as the petitioner cannot ride on two horses. Without entering into the merits of the matter, the Appellate Authority is surely to consider all aspects, including the one which has been raised before this Court.

6. In view of above, this petition is rejected. It is clarified that disposal of this petition, in no manner, shall prejudice the rights of the petitioner.