Home Case Index All Cases Income Tax Income Tax + HC Income Tax - 2014 (7) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2014 (7) TMI 45 - HC - Income TaxAvailability of alternate remedy - Opportunity of being heard - Whether high court was justified in interfering with the order passed by the assessing authority u/s 148 of the Act in exercise of its jurisdiction under Article 226 of the Constitution of India when equal efficacious alternative remedy was available to the assessee under the Act – Held that:- The assessee had submitted a submission note, the same has not been considered by the respondent with reference to the survey conducted u/s 133 of the Act nor he has referred to the documents produced by the assessee - the assessee has produced information about the filing of returns by the recipient of the amount from the Society and thus, assessee rightly opposed action - if returns has been filed by the recipient and he has computed tax liability and/or has paid the tax, the payer referred to u/s 201 of the Act is not liable for payment of tax or to deduct TDS - These are all factual issues and there is no reason why the respondent-Officer should hesitate or shy from enquiring into this issue - When the Statute creates liability, there has to be a fact finding on the issue - Though the assessee has not produced the certificate from the accountant with respect to the income of the recipient, it is hard to accept that benefit of the provision will not be available to the assessee - there has to be a realistic assessment of the fact situation and in that any material information regarding filing of returns/ payment of tax by recipient furnished by the petitioner should receive consideration. The officer should have examined the truth or otherwise of the statement made by the petitioner that the recipient of the amount had filed its returns for tax assessment - Had the assessee been given an opportunity of personal hearing as sought for, a realistic assessment could have been done – the order of assessment has no reference to the information furnished by the assessee regarding filing of returns by the recipient of the amount nor does it contend any opinion as to why such statement of the assessee was not considered. The order passed by the authority is an order without granting due opportunity to the assessee which has resulted in treating the assessee as assessee in default - the assessee has been saddled with not only the tax liability but even penalty - The officer has also proceeded in haste to resort to coercive steps to freeze the bank account to paralyze its function - The manner in which proceedings are initiated and culminated by the impugned order and demand notice, speaks of arbitrariness and no judicious approach - as the main ground in the order is passed without giving any opportunity to the assessee, the order is seriously impacted – the AO is directed to commence fresh proceedings after giving due opportunity to the assessee - Decided in favour of assessee.
|