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2021 (9) TMI 1275 - HC - Income TaxRights of the writ petitioner to prefer an appeal against the impugned Assessment Order i.e., appeal under Section 246A - Statutory appeal - Alternate remedy - Point on Section 80B of IT Act was not raised before the Assessing Officer - HELD THAT:- There is no pre-deposit condition and the statutory appeal is under Section 246A of IT Act. This Court is informed that Appellate Authority is CIT(A), Coimbatore. This Court is also informed that there is no cap qua 'Condonation of Delay' ('COD') with regard to filing of the appeal and it is at the discretion of the Appellate Authority. The most important and significant aspect of the matter even according to the impugned order is, a show-cause notice dated 04.03.2021 has been sent to the writ petitioner /assessee and writ petitioner has not sent any reply or explanation. Owing to this, the respondent has concluded that the Assessee has no objection qua addition/disallowance made in the draft Assessment Order. That point that is being canvassed turns on Section 80B of IT Act was not raised before the Assessing Officer though an opportunity was given to the writ petitioner and writ petitioner did not avail the same. In this view of the matter, nothing prevents the writ petitioner from raising this very point in an appeal. The right of the writ petitioner to raise this point before the Appellate Authority is preserved. This Court has repeatedly held that alternate remedy, though not a absolute rule i.e., a rule of discretion and self imposed restraint qua writ court has to be applied strictly when it comes to fiscal statutes as long as exceptions such as NJP violation are not attracted. Captioned writ petition is, therefore, disposed of holding that the rights of the writ petitioner to prefer an appeal against the impugned Assessment Order i.e., appeal under Section 246A of IT Act to Commissioner of Income Tax (Appeals), Coimbatore, Appellate Authority raising all points available to the writ petitioner including the points raised in the instant writ petition are preserved. If there is any delay in preferring the appeal, it is open to the writ petitioner to seek COD and if such an COD prayer is made, Appellate Authority shall decide the same on its own merits and in accordance with law.
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