| The Tax Publishers2021 TaxPub(DT) 2764 (Guj-HC) : (2021) 433 ITR 0007 CONSTITUTION OF INDIA, 1950
Article 226 Section 271(1)(c)
Where penalty proceedings on the basis of the assessment order being made final and it was being challenged directly before this Court without availing the alternative efficacious remedy as provided under the Act, therefore, this petition could not be entertained as no case was made out to interfere with order, with a liberty to petitioner to file an appeal before the competent authority and if appeal is filed, appellate authority shall not raise the technical issue of limitation and decide the same on merits, in accordance with law.
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Writ - Maintainability - By passing the option to file statutory appeal as provided under section 264A - Penalty under section 271(1)(c) on addition under section 68
Petitioner sought to challenge the Order passed by ITO made under section 271(1)(c) for the assessment year 2016-17, whereby petitioner was directed to pay a sum by way of penalty in respect of the assessment year 2016-17. It was an undisputed fact that, the case of petitioner was taken up for scrutiny assessment and final assessment order under section 144 was passed by authorities ex parte by making addition under section 68. Revenue had also initiated the penalty proceedings under section 271(1)(c) and after giving an opportunity of being heard, penalty order also came to be passed. Petitioner, instead of filing a statutory appeal as provided under section 264A, had directly approached this Court by invoking the writ jurisdiction under Article 226. Held: In case of CIT & Ors. v. Chhabil Dass Agrawal [(2014) 1 SCC 603 : 2013 TaxPub(DT) 2200 (SC)], this Court had taken a view that petition ought not to be entertained when there is an efficacious statutory remedy available to petitioner and accordingly, petitioner was relegated to avail the remedy of appeal before the appellate authority. In this case, penalty proceedings on the basis of the assessment order being made final and it was being challenged directly before this Court without availing the alternative efficacious remedy as provided under the Act. Therefore, the Court declined to entertain writ petition as no case was made out to interfere with impugned order, with a liberty to petitioner to file an appeal before the competent authority. If the appeal is filed, the appellate authority shall not raise the technical issue of limitation and decide the same on merits, in accordance with law.
Followed:CIT & Ors. v. Chhabil Dass Agarwal (2014) 1 SCC 603 : 2013 TaxPub(DT) 2200 (SC).
REFERRED :
FAVOUR : Directions issued.
A.Y. : 2016-17
IN THE GUJARAT HIGH COURT
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