Gujarat High Court
Indo Colchem Ltd vs Dy Commissioner Of Income Tax, Circle ... on 16 January, 2023
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/428/2023 ORDER DATED: 16/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 428 of 2023
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INDO COLCHEM LTD.
Versus
DY COMMISSIONER OF INCOME TAX, CIRCLE 2(1)(1)
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Appearance:
MR NITIN K MEHTA(3286) for the Petitioner(s) No. 1,2
for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 16/01/2023
ORAL ORDER
(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)
1. 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 27.03.2021 issued by the respondent No.1 for assessment year 2013-14 and the assessment order dated 30.03.2022 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 Page 1 of 4 Downloaded on : Mon Jan 23 20:31:53 IST 2023 C/SCA/428/2023 ORDER DATED: 16/01/2023 year 2013-14 on 30.09.2013, which was selected first for scrutiny and a detailed questionnaire with 41 queries was issued by the Assessing Officer on 24.07.2015.
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 the oral query relating to claim of service tax on export sales commission of Rs.25,23,444/- 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 27.03.2021 under Section 148 for reassessment under Section 147 of the Act for assessment year 2013-14. The reasons raised two issues
(a) claim of service tax on export sales commission and (b) buyback of 12.50 lakhs fully paid equity shares. 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 01.02.2022 in related to that no Page 2 of 4 Downloaded on : Mon Jan 23 20:31:53 IST 2023 C/SCA/428/2023 ORDER DATED: 16/01/2023 response of the petitioner had been received and the notice had been issued on the ground that the objections of the petitioner had not been disposed off in light of the guidelines laid down in GKN Drive Shafts (India) Ltd. - 259 ITR 19 (SC).
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 30.03.2022. 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 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 Page 3 of 4 Downloaded on : Mon Jan 23 20:31:53 IST 2023 C/SCA/428/2023 ORDER DATED: 16/01/2023 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.
(SONIA GOKANI, J) (SANDEEP N. BHATT,J) M.H. DAVE Page 4 of 4 Downloaded on : Mon Jan 23 20:31:53 IST 2023