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2023 (9) TMI 756 - MADRAS HIGH COURTValidity of assessment u/s 144B - LTCG on sale of inherited shares which were held in petitioner's father's name - petitioner had merely uploaded an affidavit of his mother which is not sufficient and petitioner ought to have uploaded a proper reply/representations to the draft Assessment order cum Show Cause Notice in absence of the proper response from the petitioner - HELD THAT:- Mere filing of the affidavit does not prove that shares (which were sold by the assessee) were transferred by his mother in favour of her son A.v.Kishore (assessee). In this support no documentary evidence has been furnished by the assessee. Petitioner has failed to give a proper response to the Show Cause Notice cum Draft Assessment order dated 22.04.2021. In absence of a proper reply, the respondent could not be blamed. Whether the respondents are entitled to make additions to re-compute the taxable income of the petitioner to demand the differential tax of cannot be decided under Article 226 of the Constitution of India. The proper remedy for the petitioner is only to file a Statutory Appeal before the Appellate Commissioner under Section 246 of the Income Tax Act, 1961. The petitioner has instead filed this writ petition within the time period prescribed for filing a Statutory Appeal. Considering the above, Court is inclined to dispose this writ petition by giving liberty to the petitioner to file a Statutory Appeal before the Appellate Commissioner within a period of 30 days from the date of receipt of a copy of this order. Petitioner is also given liberty to file appropriate application before the respondents for stay of recovery proceedings in accordance with Section 220(6) of the Income Tax Act or in the alternative ask for waiver in accordance with the relevant circular of the Board. The petitioner shall file the Appeal before the Appellate Authority and the application before the concerned Authority either for waiver/or for stay as the case may be, within a period of four weeks from the date of receipt of a copy of this order. Pending disposal of such application, the respondent/Income Tax Department, recovery proceedings shall be kept in abeyance.
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