Piramal Healthcare Ltd. v. Addl. CIT

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The Tax Publishers2013 TaxPub(DT) 0455 (Bom-HC) : (2013) 049 (I) ITCL 0352 INCOME TAX ACT, 1961 --Appeal [Commissioner (Appeals)]--Appealable orders Writ involves several points to be discussed--Assessee claimed deduction under section 80-IC. The return of assessee was selected for scrutiny. Assessee in response to a query from revenue stated that there was no inter-unit transfer, whereas in fact machinery of the value of Rs. 5.5 crore was transferred. Revenue passed a draft assessment order and made some additions. Ultimately, final assessment order was passed under which deduction under section 80-IC had been completely denied and certain addition was made. Assessee contended that once a draft order was made and served upon the assessee, assessing officer has no jurisdiction to make any additions thereafter. He submitted that the same could not be done even by issuing a further or a fresh draft assessment order. Assessee further contended that by passing the assessment order, revenue had denied the assessee an opportunity of availing the provisions of section 144C with respect to the additions that were not made in the draft order. *Held:* It was held that assessee's submissions were not without substance. These indeed were important issues which would undoubtedly required a decision of the court at some stage in a given matter or even in the present case at another stage in appropriate proceedings. They certainly were points and aspects that required serious consideration by the authorities and by this court. Further it was not intended to exercise jurisdiction under Article 226 of the constitution for this matter which involved several points, some of which required a detailed consideration on disputed questions of fact including as to whether assessee had made false statements as indicated earlier. It could serve no purpose and could indeed be cumbersome to have these issues decided in different proceedings. Assessee had filed an appeal under section 246A. The Advocate General made a statement that according to the revenue Commissioner (Appeals) had jurisdiction to decide all the questions that had been raised in the assessee's appeal. The Advocate General stated that the Commissioner (Appeals) would be entitled inter-alia to quash the assessment order and to pass all consequential orders including as to the effect thereof. In other words, if the Commissioner (Appeals) upholds assessees contention that a fresh draft assessment order cannot be passed, the Commissioner (Appeals) can always so hold. If on the other hand, it was held that upon the assessment order being quashed, a fresh draft assessment order could be issued and the matter be proceeded with under section 144C, he could be entitled to issue necessary orders and directions in that regard as well. Therefore, the writ petition was dismissed only on the ground that this was not a fit case to exercise jurisdiction under article 226. Income Tax Act, 1961 Section 246A Constitution of India, 1950 Article 226 In the Bombay High Court S. J. Vazifdar & M. S. Sanklecha, JJ. Piramal Healthcare Ltd. v. Addl. CIT Writ Petition No. 1324 of 2012 4 September, 2012 *Decision:* Matter remanded. Petitioner by : J. D. Mistri, Niraj Sheth & Atul Jasani Respondent by : D. J. Khambatta & Abhay Ahuja ORDER Respondent No. 2 is the Union of India. The petitioner inter-alia seeks a writ of certiorari quashing an assessment order dated 29-2-2012 passed under section 143(3) of the Income Tax Act, 1961 in so far as it varies a draft assessment order dated 29-12-2011 passed under section 143(3) read with section 144C and makes additions and disallowances not made in the draft assessment order, a notice of demand dated 29-2-2012 issued under section 156 pursuant to the impugned assessment order and an order dated 19-3-2012 rejecting the petitioners request for a stay of recovery proceedings. SUBSCRIBE FOR FULL CONTENT

The Tax Publishers2013 TaxPub(DT) 0455 (Bom-HC) : (2013) 049 (I) ITCL 0352

INCOME TAX ACT, 1961

--Appeal [Commissioner (Appeals)]--Appealable orders Writ involves several points to be discussed--Assessee claimed deduction under section 80-IC. The return of assessee was selected for scrutiny. Assessee in response to a query from revenue stated that there was no inter-unit transfer, whereas in fact machinery of the value of Rs. 5.5 crore was transferred. Revenue passed a draft assessment order and made some additions. Ultimately, final assessment order was passed under which deduction under section 80-IC had been completely denied and certain addition was made. Assessee contended that once a draft order was made and served upon the assessee, assessing officer has no jurisdiction to make any additions thereafter. He submitted that the same could not be done even by issuing a further or a fresh draft assessment order. Assessee further contended that by passing the assessment order, revenue had denied the assessee an opportunity of availing the provisions of section 144C with respect to the additions that were not made in the draft order. Held: It was held that assessee's submissions were not without substance. These indeed were important issues which would undoubtedly required a decision of the court at some stage in a given matter or even in the present case at another stage in appropriate proceedings. They certainly were points and aspects that required serious consideration by the authorities and by this court. Further it was not intended to exercise jurisdiction under Article 226 of the constitution for this matter which involved several points, some of which required a detailed consideration on disputed questions of fact including as to whether assessee had made false statements as indicated earlier. It could serve no purpose and could indeed be cumbersome to have these issues decided in different proceedings. Assessee had filed an appeal under section 246A. The Advocate General made a statement that according to the revenue Commissioner (Appeals) had jurisdiction to decide all the questions that had been raised in the assessee's appeal. The Advocate General stated that the Commissioner (Appeals) would be entitled inter-alia to quash the assessment order and to pass all consequential orders including as to the effect thereof. In other words, if the Commissioner (Appeals) upholds assessees contention that a fresh draft assessment order cannot be passed, the Commissioner (Appeals) can always so hold. If on the other hand, it was held that upon the assessment order being quashed, a fresh draft assessment order could be issued and the matter be proceeded with under section 144C, he could be entitled to issue necessary orders and directions in that regard as well. Therefore, the writ petition was dismissed only on the ground that this was not a fit case to exercise jurisdiction under article 226.

Income Tax Act, 1961 Section 246A

Constitution of India, 1950 Article 226

In the Bombay High Court

S. J. Vazifdar & M. S. Sanklecha, JJ.

Piramal Healthcare Ltd. v. Addl. CIT

Writ Petition No. 1324 of 2012

4 September, 2012

Decision: Matter remanded.

Petitioner by : J. D. Mistri, Niraj Sheth & Atul Jasani

Respondent by : D. J. Khambatta & Abhay Ahuja

ORDER

Respondent No. 2 is the Union of India. The petitioner inter-alia seeks a writ of certiorari quashing an assessment order dated 29-2-2012 passed under section 143(3) of the Income Tax Act, 1961 in so far as it varies a draft assessment order dated 29-12-2011 passed under section 143(3) read with section 144C and makes additions and disallowances not made in the draft assessment order, a notice of demand dated 29-2-2012 issued under section 156 pursuant to the impugned assessment order and an order dated 19-3-2012 rejecting the petitioners request for a stay of recovery proceedings.