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2022 (3) TMI 1406 - HC - Income TaxMaintainability of Writ petition challenging the assessment / reassessment order - Validity of reopening of assessment u/s 147 - whether the objections raised by the petitioner pursuant to the notice u/s148 of the Income Tax Act 1961 were decided or not and if not, the assessment order passed pursuant to the notice under Section 148 would not be legally sustainable? - HELD THAT:- The judgment of the Hon’ble Apex Court in GKN Driveshafts (India) Ltd[2002 (11) TMI 7 - SUPREME COURT] shows that, when a notice under Section 148 of the Act is given, the proper course of action for the assessee is to file a return and if he so desires, to seek reasons for issuing the notice, and the assessing authority is bound to furnish the reasons for reopening the assessment. On receipt of the reasons, the assessee is entitled to file his objections to the issuance of the notice and the assessing officer is bound to dispose of the same by passing a speaking order. In the instant case, the allegation of the petitioner is that, pursuant to the notice under Section 148 of the Act, when an objection was submitted by the petitioner, no speaking order was passed on it, rather an assessment order was passed directly. The arguments have been raised without taking note of the fact that while sending the show cause notice and draft assessment order on 24.09.2021, the order on the objections was also sent, after dealing with the objections. When no response to the show cause notice along with the draft assessment order was received, the final assessment order was passed on 28.09.2021. Accordingly, we do not find this as a fit case for maintaining a writ petition to challenge the assessment order. However, the petitioner can seek remedy by filing an appeal against the assessment order because, we have not touched the merits of the issue. Rather, the present order is only with reference to the maintainability of the writ petition in reference to the notice under Section 148 of the Income Tax Act and the objections thereupon. Thus taking note of the peculiarity of the case, the respondents shall not take any coercive action against the petitioner till the disposal of the appeal and the appellate authority is directed to expedite the hearing and decide the appeal at the earliest so that the position in reference to the legal issue regarding the acceptance of VAT towards expenditure on the income may become clear as to whether it is allowable or not. This order shall not be taken as a precedent, as it is passed after taking note of the peculiar facts of the present case only.
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