Madras High Court
M/S.Cavinkare Pvt. Ltd vs The Deputy Commissioner Of Income Tax on 6 January, 2016
Author: M.Jaichandren
Bench: M.Jaichandren, S.Vimala
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06-01-2016 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN AND THE HONOURABLE MRS.JUSTICE S.VIMALA W.A.No.1449 of 2015 and W.P.Nos.8445 and 9674 of 2015 W.A.No.1449 of 2015 M/s.CavinKare Pvt. Ltd Registered under the provisions of Indian Companies Act 1956 Represented by its General Manager (finance) Mr.R.Prabakara Kumar, "Cavin Ville", 12, Cenotaph Road, Chennai-600 018. .. Appellant. Versus The Deputy Commissioner of Income Tax Corporate Circle 1(2) 121, Mahatma Gandhi Road, Nungambakkam, Chennai-34. .. Respondent. Prayer: Appeal made under Section 15 of the Letters Patent against the order, dated 29.4.2015, made in W.P.No.9674 of 2015. For Appellant : Mr.Balbir Singh (SC) for Mr.R.Sivaraman For Respondent : Mr.Pramod Kumar Chopda Senior Standing Counsel assisted by Mr.S.Rajasekar and Mr.P.Rajkumar Shabak W.P.No.8445 of 2015: M/s.CavinKare Pvt. Ltd Registered under the provisions of Indian Companies Act 1956 Represented by its General Manager (finance) Mr.R.Prabakara Kumar, "Cavin Ville", 12, Cenotaph Road, Chennai-600 018. .. Petitioner. Versus 1. The Deputy Commissioner of Income Tax Company Circle 1(3) 121, Mahatma Gandhi Road, Nungambakkam, Chennai-34. 2. The Deputy Commissioner of Income Tax Corporate Circle 1(2) 121, Mahatma Gandhi Road, Nungambakkam, Chennai-34. .. Respondents. Prayer: Petition filed under Article 226 of the Constitution of India, praying for a Writ of Certiorari calling for the records of the first respondent in PAN No.AAACB3754B and quash the impugned notice under Section 148 of the Act, dated 29.3.2014, and the consequent proceedings issued by the second respondent in Co.Cir.1(2)/200/2014-15, dated 17.3.2015. For Petitioner : Mr.Balbir Singh (SC) for Mr.R.Sivaraman For Respondents : Mr.Pramod Kumar Chopda Senior Standing Counsel assisted by Mr.S.Rajasekar and Mr.P.Rajkumar Shabak W.P.No.9674 of 2015: M/s.CavinKare Pvt. Ltd Registered under the provisions of Indian Companies Act 1956 Represented by its General Manager (Finance) Mr.R.Prabakara Kumar, "Cavin Ville", 12, Cenotaph Road, Chennai-600 018. .. Petitioner. Versus The Deputy Commissioner of Income Tax Corporate Circle 1(2) 121, Mahatma Gandhi Road, Nungambakkam, Chennai-34. .. Respondent. Prayer: Petition filed under Article 226 of the Constitution of India, praying for a Writ of Certiorarified Mandamus, calling for the records of the respondent in PAN No.AACB3754B in re-assessment order issued by the respondent under Section 143(3) read with Section 147 of the Act dated 23.3.2015 and quash the same and consequently, direct the respondent to redo the re-assessment after giving personal hearing. For Petitioner : Mr.Balbir Singh (SC) for Mr.R.Sivaraman For Respondent : Mr.Pramod Kumar Chopda Senior Standing Counsel assisted by Mr.S.Rajasekar and Mr.P.Rajkumar Shabak COMMON JUDGMENT
(Judgment of the Court was made by M.Jaichandren,J.) This Writ Appeal has been filed against the order passed by the learned single Judge, dated 29.4.2015, made in M.P.No.1 of 2015, in W.P.No.9674 of 2015.
2. In the Writ Appeal filed by the appellant, in W.A.No.1449 of 2015, the learned counsel appearing on behalf of the appellant had submitted that the impugned reassessment order, dated 23.3.2015, passed under Section 143(3), read with Section 147 of the Income Tax Act, 1961 (hereinafter referred to as the `the Act'), is opposed to law, equity, fair play and the principles of natural justice. It had been submitted that no reasonable opportunity of being heard had been given to the appellant before the impugned order had been passed.
3. It had been further submitted that the assessment for the assessment year 2008-2009 had been concluded, under Section 143(3) of the Act. However, it was sought to be reopened by the authority concerned, after a period of four years. In the case of the assessee, an order rejecting the objections was passed, on 17.3.2015, and the impugned order was passed, on 23.3.2015, without considering the preliminary request made by the assessee seeking time to file final objections.
4. It has been further submitted that the assessment proceedings cannot be validly reopened, under Section 147 of the Act, when the original assessment had been made under Section 143(3) of the Act. There are no new material facts that have been found by the respondent. Such an action would only mean a change of opinion which cannot be a ground for reopening an assessment after the expiry of four years from the relevant assessment year. In the case of the assessee there is no finding by the respondent that there was a failure on its part to disclose the relevant materials before the assessment order had been passed. Hence, the proviso to Section 147 of the Act would bind and it is for the respondent to prove that there was a failure on the part of the assessee to disclose fully and truly all the relevant materials and the necessary particulars relating to the assessment. Since no reasonable opportunity had been given to the appellant to contest his case against the reassessment proceedings, the writ petition, in W.P.No.9674 of 2015, had been filed before this court.
5. A miscellaneous petition, in M.P.No.1 of 2015, had also been filed seeking an order of interim stay of the proceedings of the respondent, during the pendency of the said writ petition. Since the said prayer of the appellant had been rejected by the learned single Judge, by his order, dated 29.4.2015, the appellant had preferred the Writ Appeal, in W.A.No.1449 of 2015, before this Court.
6. The Writ Petition, in W.P.No.8445 of 2015, had been filed challenging the impugned notice issued by the Deputy Commissioner of Income Tax, Company Circle 1(3), Chennai, dated 29.3.2014, issued under Section 148 of the Act and the consequent proceedings issued by the Deputy Commissioner of Income Tax, Corporate Circle 1(2), Chennai, dated 17.3.2015, rejecting the objections filed by the appellant.
7. The Writ Petition, in W.P.No.9674 of 2015, had been filed by the appellant praying that this court may be pleased to issue a Writ of Certiorarified Mandamus, to call for the records relating to the reassessment order passed by the Deputy Commissioner of Income Tax, Corporate Circle 1(2), Chennai, under Section 143(3), read with Section 147 of the Act, dated 23.3.2015, and to quash the same and consequently, direct the said authority to reopen the reassessment, after giving a personal hearing to the appellant.
8. The learned counsel appearing on behalf of the appellant had contented, inter alia, that the authorities of the respondent department had no power or jurisdiction to reassess the completed assessment for the assessment year 2008-2009, under Section 143(3), read with Section 147 of the Act and to pass a reassessment order, without giving sufficient opportunity to the assessee to raise its objections and without giving the assessee an opportunity of hearing. As no prima facie case had been made out by the assessing authority to show that the assessee had not produced the relevant materials or suppressed certain material facts relating to the assessment, the question of reassessment of the assessment order cannot arise. The learned counsel appearing on behalf of the assessee had relied on the following cases to substantiate the claim of the assessee and to show that a Writ Petition is not maintainable against such an erroneous order.
"1. Pr.Commissioner of Income Tax Vs. Tupperware India Pvt. Ltd. [ITA 415/2015-decided on 10.8.2015]
2. Commissioner of Income Tax Vs. Orient Craft Ltd. (2013) 354 ITR 536 (Del.)
3. Mohan Gupta (HUF) Vs. Commissioner of Income Tax and anr. (2014) 366 ITR 115 (Del.)
4. Commissioner of Income Tax Vs. K.L.Arora [ITA 118/2014 - decided on 21.04.2014]
5. Commissioner of Income Tax Vs. Atul Kumar Swami (2014) 362 ITR 693 (Del.)
6. Madhukar Khosla Vs. Assistant Commissioner of Income Tax (2014) 367 ITR 165 (Del.)
7. Commissioner of Income Tax Vs. Smt.Jyoti Devi (2008) 218 CTR (Raj.) 264.
8. Bapalal and Co. Exports Vs. Joint Commissioner of Income tax (2007) 289 ITR 37 (Mad.)
9. Commissioner of Income Tax Vs. Schwing Stetter India Pvt. Ltd. [Tax Case (appeal) No.217/2015 decided on 2.6.2015]
10. Commissioner of Income Tax Vs. Arvind Remedies Ltd [Tax Case (appeal) No.1363/2007 decided on 8.06.2015
11. Fenner (India) Ltd. Vs. Deputy Commissioner of Income Tax (2000) 241 ITR 672 (Mad).
12. Aroni Commercials Ltd. Vs. Deputy Commissioner of Income Tax, (2014) 362 ITR 403 (Bom).
13. Aroni Commercials Ltd. Vs. Assistant Commissioner of Income Tax, (2014) 367 ITR 405 (Bom). 14 M/s.PVP Ventures Ltd Vs. Deputy Commissioner of Income Tax Chennai [Order of the Supreme Court, dated 11.8.2014 in Special Leave to Appeal (C) No.19652/2014)
15. Doshi Housing Limited Vs. ACIT, (Order of the High Court of Madras, dated 27.4.2012, made in W.P.No.29070 of 2011)
16. Joint Commissioner of Income Tax Vs. Kalanithi Maran, (Order of the High Court of Madras, dated 4.7.2014, made in W.A.Nos.347 to 349 of 2014 (Batch)."
9. The learned counsel appearing on behalf of the department had submitted that the appellant has challenged the reassessment order, dated 23.3.2015, relating to the assessment year 2008-09, in W.P.No.9674 of 2015. The assessee has also filed a separate appeal, on 22.4.2015, before the appellate authority, namely, the Commissioner of Income Tax (Appeals) I, in ITA No.1/10/188/2015-16, and the said appeal is pending disposal.
10. It has also been submitted that the assessee had filed a writ petition, in W.P.No.6111 of 2013, challenging the reassessment notice issued under the Wealth Tax Act. The said Writ Petition had been dismissed as not maintainable, by an order of the first respondent, dated 4.7.2014. The assessee had not challenged the said decision, till date. The learned counsel appearing on behalf of the department has also submitted that having invoked the appeal remedy against the reassessment order, it would not be open to the assessee to agitate the matter, before this court, in the present cases.
11. Considering the submissions made by the learned counsels appearing on behalf of the assessee and on behalf of the department, and on a perusal of the records available before this court and in view of the decisions cited supra, we are of the considered view that it is for the assessee to agitate the matter before the statutory authorities concerned, as per the relevant provisions of the Income Tax Act, 1961, challenging the reassessment order.
12. The contentions raised on behalf of the assessee cannot be countenanced, as statutory remedies are available to the assessee to agitate the matter before the appropriate authorities, by raising all the grounds available to it. It is noted that the issued by the authority concerned, relating to the assessment year 2008-2009, and the subsequent reassessment order passed, had been challenged by the assessee before the appellate authority concerned, in ITA No.1/10/188/2015-16, before the Commissioner of Income Tax (Appeals) I. It is for the assessee to pursue the said remedy, in accordance with the relevant provisions of the Income Tax Act, 1961.
13. In such circumstances, we do not find any cause or reason to interfere with the impugned reassessment notice and the consequential order, dated 23.3.2015, at this stage. Hence, the above writ petitions and the writ appeal stand dismissed, with the liberty to the assessee to raise all the grounds available to it, before the authorities concerned and to seek the reliefs available to it, in accordance with law. No costs. Consequently, connected miscellaneous petitions are closed.
(M.J.J.,) (S.V.J.,)
Index:Yes/No 06-01-2016
Internet:Yes/No
csh
To
1. The Deputy Commissioner of Income Tax
Company Circle 1(3)
121, Mahatma Gandhi Road,
Nungambakkam, Chennai-34.
2. The Deputy Commissioner of Income Tax
Corporate Circle 1(2)
121, Mahatma Gandhi Road,
Nungambakkam, Chennai-34.
M.JAICHANDREN,J.
AND
S.VIMALA,J.
csh
W.A.No.1449 of 2015 and
W.P.Nos.8445 and 9674 of 2015
06-01-2016