TMI Blog2010 (8) TMI 743X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed, objections filed by the petitioner before the Dispute Resolution Panel are hereby restored to the file of the Dispute Resolution Panel - 8179 of 2010 - - - Dated:- 31-8-2010 - DEVANI H. N. MS., ABHILASHA KUMARI SMT., JJ. JUDGMENT Ms. H. N. Devani J.- 1. The amendment tendered on August 30, 2010, is allowed in terms of the draft. The same shall be carried out forthwith. 2. Rule. Mrs. Mauna M. Bhatt, learned advocate appearing on behalf of the respondents, is directed to waive service of rule on behalf of the respon- dents. 3. This petition under article 226 of the Constitution of India had initially been filed with the following substantive prayers : "(A) Your Lordships be pleased to issue : (i) A writ of, or in the nature of, certiorari quashing and setting aside the directions issued by respondent No. 1-Dispute Resolution Panel dated July 8, 2010, at annexure G hereto ; (ii) Be further pleased to issue a writ of mandamus directing respondent No. 1 to hear and decide the objections submitted by the petitioner to the draft assessment order dated December 29, 2009, on the merits ; and (iii) Be further pleased to issue a writ of mandamus restr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 144C of the Act on December 29, 2009, and forwarded the same to the petitioner under section 144C(1) of the Act. The petitioner upon being served with the draft assessment order sub- mitted its objections to the Dispute Resolution Panel as contemplated under section 144C(2) of the Act. Subsequently, the petitioner came to know that a clarification had been issued by the Central Board of Direct Taxes regarding objections before the Dispute Resolution Panel which clarified that a choice had been given to the assessee to go before the Dispute Resolution Panel or prefer the normal appellate channel. The peti- tioner, at this stage, decided to exercise the option available to it and filed an appeal before the Commissioner of Income-tax (Appeals) against the assessment order, as may be finalised by the Assessing Officer. Pursuant to the first notice of hearing issued by the Dispute Resolution Panel on March 11, 2010, the petitioner, at the time of the first hearing on April 22, 2010, submitted a letter of the same date requesting consent of the Dispute Resolution Panel to approach the Assessing Officer and pursue the normal appellate channel thereafter. 8. Vide the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng for its consent to allow the petitioner to approach the Assessing Officer and request him to issue the final order to enable the petitioner to file an appeal before the Commissioner (Appeals). Attention was invited to the impugned order and more particularly, to paragraph 4 thereof, to indi- cate that the hearing was fixed on July 8, 2010, to discuss with regard to the application dated April 22, 2010, made by the petitioner. It was submitted that despite the aforesaid fact, the Dispute Resolution Panel had, in paragraph 6 of its order, held that the assessee had a choice either to file objections before the Dispute Resolution Panel or to prefer normal appellate channel. That the choice was required to be exercised before the objection is filed before the Dispute Resolution Panel against the draft assessment order. As the assessee had already exercised the option of filing the objections, the directions were required to be issued under section 144C(5) of the Act by the Dispute Resolution Panel. It was submitted that in so far as the observations made by the Dispute Resolution Panel on the merits of the application that once the petitioner had availed of the remedy before the Dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the remedy of approaching the last fact-finding authority, being the Tribunal. It was, accordingly, submitted that the impugned order of the Dispute Resolution Panel causes immense prejudice to the assessee. Assailing the action of the Assessing Officer in framing assessment despite the pendency of the peti- tion, it was submitted that the Assessing Officer had sufficient time to make the order till August 31, 2010, despite which he has proceeded to make the order on August 23, 2010, without waiting for the petition to be heard by the court. That the passing of the assessment order was wholly unnecessary and the Assessing Officer could have waited at least till August 31, 2010, before issuing the order. It was submitted that in the facts and circumstances of the case, the matter requires to be remitted to the Dispute Resolution Panel for considering the objections submitted by the petitioner on the merits and thereafter to issue appropriate directions under the provisions of section 144C of the Act. 11. Opposing the petition, Mr. M. R. Bhatt, learned senior advocate appear- ing on behalf of the respondents, placed reliance upon the averments made in the affidavit-in-reply fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was urged that in the circumstances, there was no infirmity in the impugned order of the Tribunal so as to warrant interference. The learned counsel next submitted that in view of the fact that the Assessing Officer has already framed assessment under section 143 read with section 144C(13) of the Act, the petition is not required to be entertained as the petitioner has an effica- cious alternative statutory remedy available by way of an appeal before the Tribunal. 12. This court has perused the record of the case and has considered the submissions advanced by the learned advocates for the respective parties. 13. The facts emerging on record are that pursuant to the draft assessment order dated December 29, 2009, made by respondent No. 2, the petitioner had filed objections dated January 29, 2010, before the Dispute Resolution Panel. Below the operative part of the order, on the last page of the order there is an endorsement to the following effect : "Copy to the assessee-company is forwarded as per the provisions of section 144C(1) of the Income-tax Act, 1961. The assessee as per the provisions of section 144C(2) of the Act, may file his acceptance of the variations t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on dated April 22, 2010, filed on behalf of the petitioner. In the second paragraph 4 (two paragraphs have been given the same number), the Dispute Resolution Panel has recorded thus : "4. To discuss the issue with regard to the above application, the case of the assessee was fixed for July 8, 2010. Thus, on the date when the impugned order was passed, the matter was fixed to discuss the issue with regard to the application dated April 22, 2010, filed by the petitioner. However, as is apparent on a bare reading of the impugned order, on the same day, the Dispute Resolution Panel, after considering the contents of the letter dated April 22, 2010, and the Circular of the Central Board of Direct Taxes, has held thus : 6. A perusal of the clarification referred to above shows that the choice has been given to the assessee either to file objections before the Dispute Resolution Panel or to prefer the normal appellate channel. But, the choice is required to be exercised before an objec- tion is filed before the Dispute Resolution Panel against the draft assessment order. The assessee has been given a choice not to file any objection before the Dispute Resolution Panel, but file an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order in consonance with the draft assessment order already passed by him, has totally non-suited the petitioner. If the Dispute Resolution Panel was of the opinion that the application dated April 22, 2010, could not have been entertained, it should have considered the objections filed by the petitioner on the merits. As a consequence of the impugned order, firstly, the objections raised by the petitioner have not been decided ; secondly, in view of the directions issued by the Dispute Resolution Panel the petitioner would not be in a position to avail of the remedy of appeal before the Commissioner (Appeals) against the draft assessment order ; and, thirdly, in the light of the observation made by the Dispute Resolution Panel that the petitioner has chosen to withdraw the objections, preferring any appeal against the impugned order before any forum would be an exercise in futility, as no appeal would be entertained against an order passed on a concession. Thus, the Dispute Resolution Panel has virtually closed all doors for the petitioner. In the circumstances, the impugned order of the Dispute Resolution Panel suffers from the vice of being contrary to the record as well as non ..... X X X X Extracts X X X X X X X X Extracts X X X X
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